To effectively regard the whole communications field through the broadcasting lens results in a distorted view
By Konrad von Finckenstein and James Mitchell
IN AN EFFORT TO PROVIDE a critical overview of the recent report by the Broadcast and Telecommunications Review Panel (the so-called Yale Report or BTLR Report), with particular focus on its ‘machinery’ recommendations (i.e., those having to do with institutional and ministerial mandates and powers), this analysis will highlight why the new-concept CRTC should be set aside.
What the panel recommended
The BTLR was asked, as part of its mandate, to comment on the institutional framework employed for the regulation of the broadcasting and telecommunications sectors. The panel did not question the existing division of responsibilities between ministers (Canadian Heritage and ISED) nor the statutory division of the broad field of communications among the Broadcasting Act, the Telecommunications Act and the Radiocommunications Act.
While the panel made a total of 97 recommendations across a wide spectrum of issues, its key area of concentration was the CRTC. In addition to being renamed the ‘Canadian Communications Commission’ (CCC), it would also be given a new and considerably larger mandate.
In the simplest terms, one could say that the BTLR looked at the complex of issues and problems facing Canada in the communications area today and decided that a vastly more powerful CRTC was the solution.
- The new CCC would have a chair, a vice-chair and up to seven commissioners (The current make-up of the CRTC is nine Commissioners, of whom only three reside in the national capital region. Only the chair and vice-chair are designated public office holders for the purposes of the Lobbying Act.) All would have to reside in Ottawa, and all would be appointed for a single seven-year term. All would be designated public office holders under the Lobbyist Registration Act (which means, among other things, that contacts between lobbyists and the DPOH’s must be reported) as would senior officials of the CRTC.
- To ensure continued input from regions and from stakeholders, the new Commission would also have its own advisory council (called the Public Interest Committee) consisting of 25 knowledgeable persons appointed from all disciplines who “would work directly with the CRTC [i.e., the new CCC] to promote understanding of public interest issues and to provide advice in advance or as part of the decision-making process.”
- Most importantly, the new Commission would be given a whole new range of regulatory powers and an expanded jurisdiction. The ambit of the to-be-renamed CRTC is unequivocally set out in two of the panel’s recommendations, which read:
- We recommend that the Telecommunications Act be amended to establish explicit jurisdiction over all persons and entities providing, or offering to provide, electronic communications services in Canada, even if they do not have a place of business in Canada.
- We recommend that the scope of the Broadcasting Act extend beyond audio and audiovisual content to include alphanumeric news content made available to the public by means of telecommunications, collectively known as media content…
To that end the BTLR recommends extensive amendments to all three affected statutes as well as restating their objectives.
What these recommendations entail
The basic approach of the BTLR is clear. The panel is in effect recommending that:
- Everyone involved in electronic media communications (that is, everything from broadcasters to streaming services to newspapers to Internet Service Providers to bloggers) should be subject to CRTC regulation, and all who are in the business of creating, aggregating or disseminating content must contribute to the creation and dissemination of Canadian content.
- Everyone involved in telecommunications must contribute to the policy objective of universal affordable broadband access by Canadians.
This dramatically expanded mandate is to be administered by a restructured CRTC with significantly enhanced authority. The Commission is to be given a vast array of new powers in terms of imposing conditions and levies, requiring registration, allowing exemption from registration, imposing administrative remedies, imposing codes of conduct, and arbitrating and resolving disputes.
The restructured Commission is also to be given a whole new set of duties, inter alia:
- Developing a stronger research and strategic foresight capability
- Monitoring the state of competition in the industry
- Monitoring digital and media literacy
- Assessing the implications of Big Data
- Advising on foreign takeovers of communication assets
- Improving accessibility for disabled persons, rural Canadians and Indigenous people
- Funding and enhancing public participation
- Establishing better consumer information and protection
What should we think about the BTLR Report?
Taken together, the recommendations of the Yale Report represent a huge step toward a larger role for government in the digital lives of Canadians, all premised on the need to take significant steps to:
- ensure maximum access for all Canadians to broadband and other modern means of communications
- foster a competitive market for the provision of communications services relying on market forces and where necessary on regulation
- have all market participants contribute to funding access
- protect the interests of individual Canadians in the information age and the digital economy
- enhance unfettered access by Canadians to the latest Internet-related technologies and content (both cultural content and news)
- foster innovation and protect consumer interests in the digital economy
- promote and protect access to (and discoverability of) Canadian cultural content in the borderless information universe.
For a number of reasons, this new Commission concept should not be accepted.
First, it would create a super-powerful appointed body with vast powers of policy and regulation over broadcasting and telecommunications (and more importantly, the Internet). So much power in one appointed body can lead to policy conflicts with elected officials. It would also make commissioners key targets for lobbying by major industry players and stakeholders, and inevitably would lead to intellectual co-opting, one way or the other. giving a single, arm’s-length regulatory body this kind of role in the economy and society is, frankly, unprecedented.
Second, the new Commission would still have two political masters with very opposing goals:
- one, the Minister of Canadian Heritage, responsible for producing a desired communication output containing maximum Canadian content;
- the other, the Minister of ISED, wanting to enable access and to unleash the vast economic potential of the Internet.
Third, it would be the tail wagging the dog in terms of approach. Broadcasting is just one, and a relatively minor, use of the Internet. To effectively regard the whole communications field through the broadcasting lens results in a distorted view. Giving the Commission jurisdiction over all electronic communications services and providing for regulation or levies in that huge domain, unless exempted, would give the new Commission enormous and potentially dangerous powers.
Fourth, neither the CRTC in its present form, nor a reasonably expanded version thereof, has the resources or the expertise to address so many varied objectives. The proposed lack of regional commissioners will meet fierce resistance from provincial governments who will see themselves excluded from any say or influence in directing the new digital economy.
Fifth, the Commission’s function is to evaluate competing policies and business approaches to find the appropriate solution to existing or emerging issues. It cannot at the same time have an expanded policy view and advisory role, together with a strategic foresight responsibility. The report makes the new Commission both advocate and decider at the same time.
Sixth, the proposed mandate would involve the new Commission in endless jurisdictional battles with other organizations (e.g. Competition Bureau, Office of the Privacy Commissioner, a new Data Commissioner).
Last and most importantly, establishing such a powerful body with so much influence over the most dynamic element of the economy – the Internet – can only result in slowing down the innovation on which both creative success and economic growth depends. The negative economic consequences of a Commission-restrained Internet may be significant.
Now, this is not to say the BLTR panel wholly missed the boat. It made a large number of process and housekeeping recommendations for change that are well thought out and urgently needed .These amendments, which undoubtedly will receive wide support, focus on harmonizing the procedures used in the various statutes, increasing transparency and timeliness of decisions, and ensuring greater participation by and funding for public interest groups, including special provisions regarding persons with disabilities and Indigenous people. These amendments should be adopted as soon as is practicable.
However, the broader machinery of government issue – that is to say, the relationship of the new Commission to ministers, the structure and functions of the Commission, and its proposed authorities – all of this needs a significant rethink.
As they stand, the BTLR recommendations should not be implemented.
The Hon. Konrad W. von Finckenstein, Q.C., was formerly the chair of the Canadian Radio and Telecommunications Commission, a Federal Justice, and Commissioner of Competition. James Mitchell is a former head of the Machinery of Government Secretariat in the Privy Council Office.
