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Memorandum for a principled politician

Posted by on in Industry News
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The purpose of this note is to draw your attention to certain features of the draft legislation that may not be apparent and that will have long term negative consequences for Canadians generally.

The Act is not about broadcasting. It is about the licensing of expression through video on the Internet. The act declares almost all such expression to be “broadcasting” so that it can regulate it.

The Broadcasting Act is a system of government licensing of speech propagated by means of radio waves. No other form of communication requires that the speaker obtain prior permission from the government before speaking, writing, or in the case of C-10, making and uploading a video to the Internet. C-10 continues this basic requirement.

The objections are these:

1.     Even on its own terms, it will not save the protected industry we know as Canadian broadcasting.

See https://cartt.ca/bill-c-10-analysis-does-anyone-care-about-the-future-of-canadian-television/?mc_cid=d7b8f865b8&mc_eid=f519da60ae  by Len St. Aubin, formerly DG Telecommunications, Industry Canada

2.     It is likely unconstitutional, in the sense that the Internet is not a “broadcast” medium. An application downloaded or streamed off the Internet does not constitute “broadcasting”. The closest this activity comes to federal jurisdiction is the carrier that transports the software across interprovincial boundaries, and they are already regulated as telecommunications carriers and not as broadcasters.

See the hyperlink which leads to a legal opinion drafted by Philip Palmer, who is a former senior Justice Department counsel and legal head of the team that drafted the 1991 version of the Broadcasting Act, at  https://www.michaelgeist.ca/2021/03/is-bill-c-10-unconstitutional/

 

3.     The Act invests the CRTC with enormous new powers over video communication that no one has either the talent or wisdom to exercise. These powers would amount to the creation of a general inquisitorial power over video communications. See the Internet Society’s submission to the Commons Committee examining C-10

 

https://internetsociety.ca/iscc-submission-to-the-commons-committee-on-broadcasting-in-re-c-10/

 

See also the exchange between Peter Grant, a broadcasting lawyer and senior member of the recent Broadcasting Telecommunications Regulatory Review, and a CRTC Commissioner McKendry, which is appended to this note. Peter Grant’s ideas have been taken up in full by C-10. They have not deviated an inch in forty years: everything is broadcasting and nothing should escape CRTC’s jurisdiction.

 

4.     The problem the Act seeks to solve is a quite narrow and easily remedied taxation and program delivery issue. The Act proposes to bring under regulation video communications across the Internet. This is speech control dressed up as cultural regulation of broadcasting.  The gap between the stated problem (TV subsidies in an Internet era) and its proposed solution (potentially huge expansion of federal regulatory authority over speech through video) is so wide one could suspect deliberate deception.

 

5.     The Act will engender endless regulatory proceedings, constitutional challenges, and at worst, a pervasive federal regulatory authority being exercised over video communications by private citizens across the Internet, or at best, a series of constitutional challenges.

The defenders of the Broadcasting Act will say that it will not cost much and it will not hurt a bit. They propose that the CRTC use its powers of exemption to figure out what could be regulated and what should be left unregulated. This is a stunning proposition: that freedom of speech through video should be in the hands of the CRTC, and more particularly, because of how the CRTC Act is constituted, it would only take one chairman and two commissioners to constitute a hearing panel. Three political appointees could extend CRTC jurisdiction over speech through video and the other commissioners could do nothing about it. He who hears decides.

If you wish to understand what a mess this bill will lead to, follow the hyperlinks to the articles mentioned. If you wish to understand what C-10 would mean, read the exchange recorded in the Appendix between Peter Grant and Commissioner McKendry which occurred in 1998. Mr. Grant has had no change of his thinking in that time, as C-10 attests.

 

Appendix

 

Exchange between Peter Grant and Commissioner McKendry in the CRTC’s first new media hearing, December 3 1998

On how the CRTC would determine whether video “program” on the Internet was “broadcasting” within the meaning of the law

 

[The CRTC called the Internet “new media” in 1998 thirty years after the invention of the Internet and it had not ceased to call the Internet “new media as late as 2013.]

 

TRANSCRIPT OF PROCEEDINGS

             FOR THE CANADIAN RADIO-TELEVISION AND

                 TELECOMMUNICATIONS COMMISSION

 

                TRANSCRIPTION DES AUDIENCES DU

                 CONSEIL DE LA RADIODIFFUSION

             ET DES TÉLÉCOMMUNICATIONS CANADIENNES

 

                       SUBJECT / SUJET:

 

             PUBLIC HEARING EXAMINING NEW MEDIA /

           AUDIENCE PUBLIQUE SUR LES NOUVEAUX MÉDIAS

 

HELD AT:                               TENUE À:

 

Place du Portage                       Place du Portage

Conference Centre                      Centre de conférences

Outaouais Room                         Salle Outaouais

Hull, Quebec                           Hull (Québec)

 

December 3, 1998                       Le 3 décembre 1998

 

                          Volume  9

tel: 613-521-0703         StenoTran         fax: 613-521-7668

 

 

 

 

COMMISSIONER McKENDRY:  Just looking

> 4     at or considering for a moment what is a program and

> 5     the definition of a program that is in the Act, when

> 6     deciding whether something that is available on a Web

> 7     site is or is not a program, what should we look at?

> 8  11009                Should we look at the entire site?

>  9     Should we look at that page?  Do we look at a frame on

> 10     that page, an image on the page?  Where do we start and

> 11     stop in deciding what constitutes a program?

> 12  11010                MR. GRANT:  Well, I think it has to

> 13     be significant in length, but I suppose technically

> 14     under the Act, to give an example, a 30 second

> 15     commercial qualifies as a program.  To a degree then I

> 16     suppose the unit is in the eye of the beholder.  It

> 17     should be viewed as a real time unit because again it's

> 18     only when it's streamed to the public that in my view

> 19     it meets the test of being a program that is intended

> 20     for reception by the public.  So there would be a time

> 21     level to it.

> 22  11011                I think it has to be a coherent

> 23     program that -- let's see.  I was going to suggest it

> 24     would have to be stored in some way, but I guess that's

> 25     also too limiting because it excludes live programs

> 

> which certainly would qualify under the Act as well.

> 2  11012                I think it's very difficult to be

> 3     precise about it.  I think that in the end it's one of

> 4     those things where the Commission will have to be

> 5     presented with a videotape of the Web site experience

> 6     and then say to itself "Now, that particular area where

> 7     they clicked on and then received a particular body of

> 8     data in an audiovisual form", because it has to be

> 9     both, or at least audio, "is that the equivalent of a

> 10     broadcast program?"

> 11  11013                COMMISSIONER McKENDRY:  If the site

> 12     was predominantly alphanumeric but the particular page

> 13     wasn't, what do we take into account?  The site or the

> 14     page?

> 15  11014                MR. GRANT:  Well, it's what's

> 16     transmitted.  Again I guess -- it's a fair question.

> 17     Would you look into all of the clicks that go into it

> 18     and then time then and find out what is predominant.

> 19  11015                I think there will be pretty clear

> 20     cases where somebody will reach a Web site, click

> 21     through the menu to get to the streamed audio or video

> 22     and then the streamed audio or vide will take over for

> 23     a period of time and it will be such an extensive

> 24     period of time compared with how short it took to get

> 25     into it that you will realize immediately this is

> 

>          1     predominantly broadcasting.

> 2  11016                I don't think you could have any

> 3     slavish rules about it, except to point to the word

> 4     predominant.

> 5  11017                COMMISSIONER McKENDRY:  And from a

> 6     practical point of view you think we would be able to

> 7     examine the situations and come to a conclusion that it

> 8     is or it isn't broadcasting.

> 9  11018                MR. GRANT:  Well, yes.  In the end it

> 10     is always possible to do that.  Again, my thinking was

> 11     if you were to think of a laissez-faire approach to

> 12     this whole sector, you would create first of all an

> 13     exemption order for diminimis applications and you

> 14     could create a threshold in there that is a pretty high

> 15     level of delivery.

> 16  11019                You could, for example, if you wanted

> 17     to, exclude audio only and say that's exempt no matter

> 18     what it contains because you think to yourself the

> 19     copyright will take care of that.

> 20  11020                As to broadcast quality video, you

> 21     might say we are only going to have these obligations

> 22     or requirements click in when the threshold is exceeded

> 23     to a certain degree.  It could very well be looking at

> 24     how much usage of a typical ISP is not generated by

> 25     that that it would be unlikely in the next five years

> 

>       1     that that threshold might be reached.

> 2  11021                At least you would have established

> 3     the ground rules if it were.  I want to come back to

> 4     one point I made in another submission to the

> 5     Commission but I think bears repeating here.

> 6  11022                I think it would be a real mistake to

> 7     recommend that all of this stuff that is broadcasting

> 8     just be taken out of the Broadcasting Act and defined

> 9     away from the Act or out of the Act.  The result of

> 10     that will be for Canada to lose control ever of getting

> 11     it back.

> 12  11023                So much turns on our raw definition

> 13     of broadcasting in our international trade agreements

> 14     that it is very important to keep a pretty broad

> 15     definition in the legislation and have that hang in

> 16     there in terms of our international trade practice.

> 17  11024                COMMISSIONER McKENDRY:  Help me

> 18     understand how this would work in a practical sense.

> 19     There's over 60,000 Canadian Web sites.  We would issue

> 20     a public notice with the minimum criteria in it that

> 21     you suggested and anything above that criteria or

> 22     benchmark I take it you are suggesting we issue an

> 23     exemption order.

> 24  11025                We would issue a public notice

> 25     setting out the criteria and we would instruct the

> 

>            1     operators of these Web sites who came above the

> 2     benchmarks to come and apply to us for an exemption

> 3     order.  Is that how it would work from a practical

> 4     point of view?

> 5  11026                MR. GRANT:  No.  My thinking was that

> 6     you would craft an exemption order right away.  You

> 7     wouldn't wait for that.  The exemption order or

> 8     proceeding to create one would emanate from this

> 9     proceeding.

> 10  11027                You would announce "We have decided

> 11     for a lot of purposes, even though they are ambiguous

> 12     or they are clearly broadcasting, in our view they do

> 13     not impact sufficiently and don't oblige us to have the

> 14     level of discipline that the Act requires.  Therefore,

> 15     we are today proposing to issue an exemption order for

> 16     any and all of that".

> 17  11028                It's a nice broad exemption order

> 18     that captures essentially 100 per cent of what is going

> 19     on today.  Then you would say "However, there is a

> 20     threshold.  If you ever do reach this threshold, which

> 21     would mean that broadcast quality video in a streaming

> 22     sense is quite prominent, is reaching a certain level

> 23     of market penetration, you will still have the benefit

> 24     of the exemption order, but the exemption order by its

> 25     own terms will require certain obligations about some

> 

>    funding as a proportion of the revenue from this

> 2     particular activity to go into a fund or whatever."

>  3     That gives you the impression of supporting the system.

> 4  11029                That's in brief how I would envisage

> 5     it.

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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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