Timothy M. Denton

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The zombie idea: unifying the Broadcasting Act and the Telecommunications Act

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You cannot kill this idea except by whacking it on the head. It is the notion, oft repeated, that what is needed in Canada is some kind of merger between the Broadcasting Act and the Telecom Act. I have heard it from Konrad von Finckenstein, former Chairman of the CRTC, Peter Grant, the leading broadcast lawyer in the country, and now my friend and colleague Michael Geist, Canada's leading academic on communications issues.

When such eminent people hold to an idea that I think is palpably wrong, you have to question your reasoning. So here it is.

The essence of the Broadcasting Act is a scheme of discriminations in favour of Canadian broadcasting signals; the essence of the Telecommunications Act is a scheme of controlling the market power of large carriers. Broadcasting Act: discriminate; Telecommunications Act: no unjust or undue discriminations.

How are these two antithetical ideas to be reconciled?

 My point is that unifying the Acts is superfluous if it is intended to maintain the status quo, and, if not intended to maintain the status quo,  is a scheme for the subordination of one over the other, to be carried out surreptitiously by legislative drafting and subsequent administration.

The Telecom Act has nine objectives, reasonably balanced between economic and social objectives. The Broadcasting Act has more objectives than there are letters in the Roman alphabet, when the subclauses are included in the count.

If we speak Internet language for a moment, the Telecom Act concerns itself with competition and control of market power in layers one through six of the OSI model. The Broadcasting Act concerns itself with the applications layer, layer 7, and the favoured application is Canadian programming.

I also think that, if the two acts were united, it would accomplish by stealth what would not be tolerated by an open political discussion, namely, the subordination of the Internet to the Broadcasting Act and regulation of Internet content by the CRTC. (I do not for a minute believe that the content of the Internet is properly the domain of the Broadcasting Act under current legislation, but changing the legislation is a way to realize such a policy without much public attention).

I would go further. Having the administration of  the Broadcasting and the Telecom Acts under one roof is thought by many to be sensible idea; I think it has proven to be a bad one. The government separated telecoms and broadcasting policy advice to cabinet decades ago when Heritage and Industry split broadcasting and telecoms; why is the regulation of telecoms still under the same roof as broadcasting in the CRTC?

Broadcasting issues prevail in terms of time absorbed by Commissioners and staff. I have seen 40 minute debates in Commission about preventing competition between two radio stations, one in St. Ephrème de Câlisse and the other in Ste.Clothidle de Ciboire, according to three milli-volt energy contours, with 40 broadcasting staff in the room. Then, the issue decided, we would have a ten minute discussion of a half-billion dollar issue in telecoms, with at most 15 telecom staff in attendance.

Broadcasting backgrounds prevail in terms of the selection of CRTC commissioners, who are chosen by the Minister of Heritage, who is responsible for culture. Commissioners tend to be from the worlds of journalism, writing, broadcasting, and advertizing. For many it takes at least a year to become roughly conversant with telecoms, and for some they never quite fully understand that the Telecoms Act is about controlling market power, and not unleashing regulated entities so they can unleash their market power on the Canadian public.

 

I can do no better than to cite my colleague Mr. Philip Palmer on the net effects of combining telecoms and broadcasting in one agency:

There is nothing in the nearly 40 years of decisions made by the CRTC since its assumption of jurisdiction over telecommunications regulation to suggest that it has been capable of providing the focus or expertise that is necessary to create consistent policies and decision making in the domain of telecommunications. Instead, the energies of the Commission have been eaten up by an endless focus on keeping the broadcasting system alive and taxing the participants in the broadcasting market to fund Canadian production. None of this is redolent of a specialised regulator with a clear focus on the needs of the telecommunications sector or – more especially – its customers.

The attempt to combine in one statute a scheme of pro-discrimination for a specialized class of Canadian signals with a scheme of non-discrimination among all signals is radically incoherent. It is akin to trying to combine Islam and Christianity in one structure. It cannot be done, it cannot be made to be done, it is not conducive to the public good that it be done, and it will fail.

I wonder why the idea keeps being raised. It joins regulating the Internet as broadcasting as one of the dumbest public policy ideas ever, and richly deserving a spike through its heart. I have the spike.

 

 

 

 

 

 

 

 

 

 

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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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