Timothy M. Denton

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Let's merge, no, let's not.

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I spoke on February 28 to a convention of the independents in Markham Ontario. This is the gist of what I said.

"Why does the law not see the Internet, I asked?"

Because it can't. The Internet is not a legal construct; it is an engineering one. When the CRTC looks at the Internet, it has two lenses. One is the Broadcasting Act, and through that lens, everything is about Canadian "programming". If something is predominantly full motion video, it is "programming", and if it is "programming", it is "broadcasting" and if broadcasting, it is a licensable activity. If you do not have a licence to broadcast, you commit a serious crime, with large financial penalties.

This system grew up in the 20th century. Licensing made sense when use of over-the-air spectrum meant that there could be very few voices communicating one way to masses of people. Time and technology have increasingly separated the original justification for licensing from its technological underpinning, but as we might expect with government regulation, the need for licensing continues long after the justification for it has passed. The newer Broadcasting Act of 1994 did everything it could to detach the justification for licensing from any particular spectrum scarcity argument.

The second lens through which the Commission perceives the Internet is the Telecommunications Act, which concerns carriers exercizing power over traffic through their systems, and granting the Commission powers to control to what degree carriers can influence the meaning, priority, conditions, and attributes of the traffic in their systems. Since the Internet is reached through carriers, the Telecommunications Act remains relevant for many reasons of public interest.

Both statutes in their essence seek to exert government influence over the voices reaching Canadians. One statute assumes that few voices are reaching, or could ever reach Canadians, and that in that mix of voices there ought to be provisions for increasing the amount of Canadian content that reaches us. Thus the whole apparatus of Broadcasting is a series of restrictions designed to transfer income into a particular form of "Canadian" content.

But as modern technologies are making it more and more convenient to communicate through full motion video, the technological scarcities that justified regulation and licensing seem ever more absurd. Full-motion video is just another form of speech these days.

The normal regime of speech is that you do not need a government licence to publish. This has been the case in English law since the Glorious Revolution of 1688, when England saw the last of the dreadful Stuart kings. Newspapers on line these days are replete with full motion video. Does this make them a licensable activity? Are they in violation of the Broadcasting Act for "broadcasting" without a licence?

Presumably.

Hence the importance of the case of Bell Mobility versus Benjamin Klass. This was the case in which the CRTC ruled that a broadcasting application did not change the underlying nature of the transport, and thus that the carrier could not shield itself from the anti-discrimination provisions of the Telecommunications Act. Broadcasting at the applications layer does not transform the underlying protocol layers into "Broadcasting", said the Commission.

Oh yes it does said Bell Mobility: broadcasting on top, broadcasting all the way down. The strategy is obvious: get your bandwidth declared "broadcasting" and you can immunize it against the anti-discrimination provisions of the Telecom Act and wrap your bandwidth in the flag of Canadian content.

Thus the reason the Internet is invisible to the law is that the law only sees statutes, not realities. And that was the end of my speech.

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A great struggle lies ahead of us who love the Internet in Canada. It is a regime where you publish without permission of the state. The forces of the broadcasting industry are relentless in the propagation of the view that the Broadcasting Act and Telecom Act need to be "merged". This is like a merger between the Soviet Union and Estonia. One system must in logic prevail over the other: freedom from licensing, or obligation to be licensed, that is, speak by permission of the state.

I expect a number of pseudo-events to occur, such as the recent CD Howe conference, where the pre-arranged record will call for the merger of the two acts. I expect a lot of hot air from the Usual Suspects that will try to sell the Liberal government on this pernicious notion.

The old Harper regime had the advantage of not owing its Torontonian media enemies anything. The new one is vulnerable because the Toronto media production people are its people. The Liberals are tied by a thousand natural affinities of kinship and business to the broadcasting/programming interests, in the same way as Hollywood votes Democratic.

I do not have the answer for the future of Canadian broadcasting, who does? But I know it does not lie through the path of subjecting everyone to licensed speech under the Broadcasting Act, or exemptions from licensing that amount to the same thing.

And when you hear the idea of "merging" the two acts, just think of the Soviet Union merging with Estonia, or Irag "merging" with Kuwait.

 

 

 

 

 

 

 

 

 

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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 Tuesday, 19 November 2019
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