Timothy M. Denton

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Legislative Review: Telecom and Broadcasting Acts

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The proposed review of our communications acts is about to proceed, but the problem is finding a significant issue that legislative change would solve. Of course, some improvements are possible. Yet I would gladly forego a few improvements, if the alternative would be to subordinate the Telecom Act to the purposes of the Broadcasting Act.

Each Act has been perfected over time for the purposes it serves. To borrow internet terminology, the Telecom Act deals with market power at the transport and infrastructure layers. The Broadcasting Act deals with the perceived problem of Canadian content, namely that without subsidies and –it is believed -  a licensing scheme, there would not be a sufficiency of it. In modern terminology, this is a problem at the applications layer.

Each Act has been perfected over time to help the regulator solve the problems which rise from the particular nature of each industry. In telecoms, the problems arise from the limited possibilities for competition, which proceed from the very large capital requirements of laying out connections throughout cities and rural areas. Wireless technologies have alleviated those capital requirements, but they have not eliminated them. Getting into the telecommunications game against incumbents takes billions upon billions, and no one has been successful in this who did not start as a licensed territorial monopoly in cable television, or as an original incumbent telephone company. Every other form of competition leases access to the facilities of others, and while resellers (as they are called) perform an important function, they are marginal.

In broadcasting, Canada attempted to create a viable alternative to the Americans by carefully erecting a closed system of licensees. In modern terms, programming is an application. It is subsidized in the hundreds of millions of dollars a year by special funding agencies. The Act established enormous penalties for “broadcasting” without a licence. A broadcaster “speaks” by fiat of the government.

The advent of technologies based in the Internet Protocol is seen by some as a sufficient cause to unify the statutes. The problem here is that the principles upon which people communicate are governed by political ideas as much as by the underlying technologies. They are governed by ideas that evolve in time, political ideas. Communication across the Internet is, on the whole, an unlicensed affair. After several civil wars and political revolutions in centuries past it has become established that one publishes without permission of the state, whether by print or by computer.

Broadcasting is an exception to this, an exception of the 20th century. While many do their best to ignore the technical reasons why broadcasting was ever regulated, it was originally predicated on the nature of radio waves. Fish swim, radio waves wander. It was considered in the early 20th century that the best way to control the tendency of radio waves to interfere with one another was to allocate and assign radio bands to exclusive uses. Subsequently the Broadcasting Act has been amended so as to evade exclusive reliance on the use of spectrum as a constitutional justification, and even gone so far as to try to situate the justification under the general clause of “peace, order and good government.”

A comprehensive scheme of the regulation of broadcasting undertakings has resulted. “If programming, then broadcasting”: so goes the justification. The CRTC has consequently claimed jurisdiction over the Internet, but so far has wisely refrained from trying to regulate audio-visual content over the Internet.

Trying to fix the problems of broadcasters in an Internet age by legislation is a mistake. Trying to stem the departure of listeners and viewers from a pre-Internet conception of service is vain. The content delivery system predicated in licencing and a closed universe of options is finished. Sure, it will hang around for a while, just as one’s grandmother’s rotary telephone may still ring. In particular the content delivery system called “television” cannot be made to last by seeking to extend the regulatory power applicable to broadcasting undertakings to services across the Internet. To borrow a manner of talking from the Internet, you cannot fix a problem at the content/applications layer with measures at the transport, network and physical layers.

Broadcasting in general, and the Canadian broadcasting system in particular, seems to be in a slow-motion crisis. But content production and distribution is flourishing as never before. The hours of scripted ‘television’ under development, including Canadian ‘television’, have never been higher. [I put ‘television’ into quotes to emphasize that I am speaking of ‘video entertainment delivered through the Internet’, and not ‘broadcasting’, and no, I do not accept that there is such a thing as ‘broadcasting” over the Internet, and I will see the proponents of this view in Court one day]. Those many hours of scripted programming will not necessarily be shown within the licensed broadcasting system; in fact most of them will be seen on Internet platforms.

The crisis is not in the amount of available Canadian programming, but in the business model of advertiser-dependent licensees. The regulator is presented with a constant temptation to extend the regulatory framework over ‘programming’ delivered through the Internet. When the business model fails, legislate to make it work. There is sufficient good sense in our governments to make them resist this temptation.

However, like the zombie that stays undead until a clean shot through the head, the idea that everything can be made to serve the Broadcasting Act and Canadian cultural policy refuses to die. The latest manifestation, cleverly articulated and disguised, is the Fair Play Coalition’s petition to use the Telecom Act as the servant of the Broadcasting Act to sustain the interests of intellectual property holders. More on this will follow, but not much here.

I would favour some greater control of the CRTC's exemption power. As it stands, the CRTC can "exempt" from regulation and achieve the same effects as if it were regulating. It exempts the Internet from broadcasting regulation and in so doing subjects it to content controls: you may publish freely as long as your speech is acceptable to us, says the exemption order. If we must legislate, and I fear the political imperatives are that government must be seen to "do something", then we need careful controls on the exemption power. It could be controlled better either by defining more precisely what 'exemption' means, preferably to exempt without qualification, or by subjecting "exemptions" to oversight, in the manner of regulations, or both.

When an opposing army strikes a defended line, it generally seeks gaps where one division ends and another begins, or better yet, where troops of one country flank troops of another, and where command structures get in the way of a coordinated defence. In the case of the CRTC, the place to attack is the gap between telecoms and broadcasting. Each branch has a tunnel vision focused on the imperatives of the statute it implements; few are the people who have a systemic view of how the two sectors interoperate. Such people tend to be the lawyers, if they exist at all,  and by virtue of their déformation professionnelle, they are trained systematically to think that law drives policy to the exclusion of other realities, or ought to, whereas I have come to believe that the engineering (architecture in Lessig's terms) ought to be taken into account.

Accordingly the attack on the Internet and the rights of the people who use it comes in the gap between telecoms and broadcasting, where a great deal of mystification can go undetected. Defending the right of people to communicate freely, some may call my idée fixe, but which I prefer to think is my criterion of truth.

 

 

 

 

 

 

 

 

 

 

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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 Wednesday, 19 September 2018
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