Timothy M. Denton

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It's not just Broadcasting: Skype! the CRTC is Coming for You

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My colleague Philip Palmer wrote the following on the BTLR, and I take the liberty of publishing it here.

The first comments on the final report of the Broadcasting and Telecommunications Legislation Review Panel (“the Report”) have largely focussed on the proposed extension of broadcasting legislation to internet content providers, such as Netflix, YouTube and on-line news services. I agree with those commentators who find the broadcasting recommendations truly appalling. However, the equally radical proposals for telecommunications have been lost in the general noise.

Historically, only facilities based common carriers have been subject to regulation by the CRTC. This is because only facilities based carriers could exercise market power. No individual subscriber, business or reseller could hold telecommunications clients to ransom. If a reseller attempted raise rates beyond what is competitive, a customer could always resubscribe to the facilities based carrier’s telecommunications services. End of story. Some recent departures have seen registration and reporting requirements imposed on resellers. Under recommendation 16, the CRTC would be empowered to regulate those entities from the cradle to the grave.

All this is blown apart by Recommendations 16 and 17 of the Report which suggests that the CRTC no longer regulate telecommunications common carriers – but also all persons and entities providing, or offering to provide, electronic services in Canada, even if they do not have a place of business in Canada.

No rationale is provided for this enormous growth in regulatory jurisdiction, nor is any attempt made to fit the proposed changes within Canada’s constitutional framework. The Panel has simply assumed that the federal government can regulate any person or entity that uses a transmission service. Certainly all internet access providers as well as all resellers will be captured and regulated as the CRTC sees fit. So also will a myriad of applications providers such as Skype, Zoom, and a host of services of all shapes and descriptions.

To the Panel’s credit, it seems to be concerned with the privacy interests of Canadians. However, privacy is a matter of shared provincial and federal jurisdiction. The powers of the Privacy Commissioner are limited, and jurisdiction is ceded where a province has developed legislation of similar scope.

Nor is there anything in the proposal that limits the regulatory authority of the CRTC to privacy concerns. Indeed, the authority seems to be absolute, and it is for the CRTC to decide whether and how deeply it will regulate persons and entities who provide an “electronic telecommunications service”. Will we see rate regulation of Skype or Facebook messenger? Will the CRTC impose regulatory levies on Skype or Facebook to build out Canadian broadband? Will swearing on Skype be prohibited? And how about live cam pornography? Will the CRTC venture into this new world as well?

There is no proffered rationale that can justify setting up the CRTC as an alternate Privacy Commissioner. Canada needs a clear line of intellectual authority in matters of privacy. The Government has committed to an updated PIPEDA, that Act should be the ultimate authority on privacy at the federal level. What will happen if the CRTC adopts policies that run at cross purposes from those of the Privacy Commissioner?

We should be alert to the fact that the Report is a very wild beast to ride. It is time, friends, to saddle up. These recommendations can lead only to grief.

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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 Sunday, 27 November 2022
You are here: Home Timothy Denton's Blog The number of cellular networks is largely irrelevant, if how they interconnect is set right