Why Broadcasting and Telecoms belong in Different Legislation

Prof. Michael Geist of the University of Ottawa is one of our foremost exponents of the law surrounding the Internet and telecommunications, and a man whose professional learning and accomplishments I much admire. However, in this recent Year Ahead blog posting http://www.michaelgeist.ca/2015/01/new-year-offers-chance-hit-reset-button-digital-policies-2/ (also published in the Toronto Star), he advocated that the Broadcasting Act be merged with the Telecommunications Act. I believe his advocacy is misplaced and profoundly wrong.

Broadcasting regulation is all about the selection of the voices that will be heard on the airwaves and ensuring that those so favoured use their privileges to further state ends: attaining the objectives of the Broadcasting Act. The objectives are varied, but are singularly devoted to cultural and social objectives such as: the primacy to be given Canadian content; the representation of women, minorities and children on the screens and behind the scenes; Canadian ownership and control. In all, there are some 22 major objectives and a large number of subordinate objectives that Parliament has asked the CRTC to implement. The key to understanding the Broadcasting Act is that it is all about the messages and who produces them.

In contrast, the Telecommunications Act is devoid of content-inspired objectives. It is an assumed good thing that Canadians be able to communicate with one another, and the content of those communications is of interest neither to the government nor to the carriers who transmit those communications over their facilities. The objectives of the Telecommunications Act are economic. While enhancing the social fabric of Canada is an objective, its attainment is not through the character or content of the messages Canadian exchange, but rather through the efficient and affordable delivery of those messages.

The objectives of the Broadcasting Act spring out of the Canadian cultural nationalism of the mid-century, coupled with political strains arising from the women’s movement, multiculturalism, bilingualism and identity politics. None of these are properly the study of telecommunications regulation.

Thinking about the merger of broadcasting and telecoms regulatory regimes is not new. In 1976, telecommunications regulation was removed from the National Transportation
Agency (telecommunications remained under the Railway Act until 1993) and moved to the newly created CRTC.

Three times in the 1970’s the then Department of Communications introduced legislation that would merge broadcasting, telecommunications and radio regulation in one Act. Eventually, the Department proceeded piecemeal, and new separate acts were passed between 1989 and 1993.

So, one asks, what is the perceived virtue in merging the Telecommunications Act with the Broadcasting Act? It has been argued (see the Afterword to the Telecommunications Policy Review Panel Final Report https://www.ic.gc.ca/eic/site/smt-gst.nsf/vwapj/tprp-final-report-2006.pdf/$FILE/tprp-final-report-2006.pdf) that the convergence of broadcasting and telecommunications technologies necessitates regulation in one body operating under one act.

While technological convergence has certainly occurred, no compelling argument has emerged to suggest that there is any convergence in the objectives of telecommunications and broadcasting policy.

Indeed, telecommunications and broadcasting regulation require very different mindsets, knowledge and sensitivities. The CRTC’s vertical integration decision – permitting Canadian carriers to acquire broadcasting undertakings – would probably not have occurred were separate regulators governing the subject matter. For those of us who care, we see no reason why it is appropriate for Bell to use its telecommunications customer base to subsidize its purchase and operation of broadcasting undertakings. Only a fixation by CRTC commissioners with pumping more money into the Canadian broadcasting industry can explain such a consumer hostile decision.

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.

Technological convergence does not necessitate regulatory convergence. Indeed, given the huge room for error in mistaking broadcasting policy interests for telecommunications policy virtues, Canada would be better prepared to deal with the impact of technological convergence were telecommunications regulation to be placed under a separate regulator altogether. Only if the regulatory silos are separated is it likely that we will ever have a regulator with sufficient expertise to effectively regulate telecommunications.

Given the recent calls to enfold Internet streaming services into the broadcasting regulatory environment, the sooner regulatory separation takes place, the sooner this folly may be put to an end.

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