WE’VE READ ALL SORTS of dissenting opinions on CRTC from individual commissioners who don’t agree with their co-panellists. But a “concurring opinion”? That’s a new one for us.
Yesterday’s release of the Commission’s broadcasting in new media review was not exactly an earth-shattering moment. Response was a tepid “yea” for the most part because faced with the Act that binds its actions as well as what’s going on in reality and using common sense, the Regulator did all it could by saying no to changes in its exemption orders, going to the Federal Court, and calling for a national digital strategy.
Our Commission had a deep look at new media, heard from everyone – whether they wanted to come or not (“we weren’t even going to bother with that file but they forced us to,” was what one senior executive from a private broadcaster told me this week about the whole process) – and decided it’s not going to do much for now.
However, by adding the “concurring opinion” at the bottom of the official review like Denton’s, I suspect the many at the Regulator’s real feelings are at least partially reflected in that 5,000-plus word diatribe.
Commissioner Denton said what so many have been saying for years now. The Broadcasting Act simply can’t be applied to the Internet and would dangerously limit free speech if anyone tried. CRTC chairman Konrad von Finckenstein said again last week that the Broadcasting Act and Telecommunications Act both need renovation – and perhaps need to be joined.
While ISPs have been regulated for more than a decade as telecom services, they clearly deliver content that sure looks like conventional television, on a base level. So what is it? And if it’s neither, providing as much consumer choice as there are consumers, shouldn’t it be left alone?
The Internet isn’t broadcasting and it’s not telecom. It uses cable and telecom wires and offers jillions of hours of video, but for gosh sakes, it’s so much more, so different, that it can’t possibly be governed or overseen under our Broadcasting Act, which has its genesis in the 1960s and was last modified in 1991. For crying out loud, Matlock, Knots Landing and The Golden Girls were all still airing new shows in ’91.
And, those born in 1991 are part of the digital generation who are driving our crazy media space and haven’t known anything BUT the choice and flexibility enabled by the spectacular growth and development of various technologies.
Says Denton: “The issue for me and for many Canadians is that the Act fails to provide the right kind of guidance to the Commission in rendering a decision so fundamental to the future of the Internet in Canada. Unless the decision-making framework is changed, there is a good chance that a future Commission will feel obliged to extend broadcasting licensing over Canadian portions of the Internet in an effort to preserve an obsolete system.”
If that doesn’t scare the federal government into action on the Act, well, nothing will. (Then again, our ridiculous MPs have wasted so much of their time this week hollering about something as insignificant as a forgotten binder, my faith in them to find the intelligence to come up with something like a new, intelligent, Broadcasting Act is near nil.)
Anyhoo, Denton is absolutely right when he goes on to say the decision rendered yesterday is not about broadcasting. To paraphrase: It’s the Internet, stupid. It’s about free speech.
“Though the Commission is obliged to consider matters through the perspective of the Act, the fundamental issue here was whether that should be the case. An invasive and transformative technical innovation such as the Internet creates a distinct reality and set of facts that cannot be ignored.
“The Act is an artefact of history. Nevertheless, it remains what the Commission must apply. It informs the debate and instructs the CRTC how to think. Therefore no sensible discussion of the Internet and the Act can take place in terms exclusive to the Act. Yet this is what Commissioners are asked to do.”
Got a headache yet? Our commissioners are being forced to render a decision on new media using the Broadcasting Act. It’s impossible, so they have exempted it… so far.
It would be like trying to apply the rules of the railways to our roads. Everything has wheels and a motor and can go forwards and backwards, but that’s where the similarities end. If we want to apply the rail rules to the road, no one could change lanes, speed up, turn around or stop to look around without the conductor’s approval.
On the web, we can watch linear video if we want, but the opportunities for interaction and change are endless. The Broadcasting Act simply can not apply. To try and make the Internet comply with our statute, and only in Canada – well – it sounds like a fantastic Monty Python skit. Ridiculous to the extreme.
Here’s Denton’s parallel: “It is not useful to attempt to understand the Internet in terms of how it conforms to the categories embedded in the Act. It is akin to judging the Copernican system (planets go around the sun) in terms of how well it conforms to the view that the planets and stars rotate about the earth. Yet that is the set of conceptual tools the Act gives us as Commissioners,” he writes.
New media, “should be put permanently beyond the reach of the CRTC. It is for this reason especially that steps must be taken to limit the Act to ‘broadcasting’, as it is popularly understood, and to leave the Internet to evolve.
“Such a result is achieved, for the next five years, maybe less, by the exemption policy confirmed in this regulatory (review). Clearly the danger remains that, guided by the terms and categories of the Act, a future set of commissioners are asked to subject a portion of the Internet to the Act,” he adds.
“This possibility must be eliminated.”
So, the Commission has recommended two approaches, one is a reference to the courts. The other is a broad look at a national digital transition strategy. “One of the principal benefits which could be achieved by a broad governmental review would be to put this issue – the freedom of people to communicate across the Internet without being subject to state licensing – permanently to rest,” says Denton.
Heritage Minister James Moore could get going on such a strategy, appointing leaders and such, immediately, if he wanted to. (One wonders if the Standing Committee on Canadian Heritage might not suggest something similar when it reports back to the House this month on its recent study of the TV biz.)
Denton’s opinion then dives deeply into the invention of the web and why that makes it all different and relevant, so his missive does get a little wordy, not to mention political, when he takes a swipe at overzealous Canadian Human Rights agencies attacks on free speech (Google his examples, Ezra Levant and Mark Steyn to find out more there), but that doesn’t lessen his point.
Of those who wanted to see the CRTC regulate the Internet (such as actors union ACTRA), he mocked: “Few expressed concern for what such a licensing scheme would mean in practical terms for freedom of speech, or freedom of commerce, or the consumer interest. ‘Just do it’ several parties told us, and we will figure out the implications later. They assumed that the Commission could craft regulations to avoid interfering with the right – sorry, the legal privilege – of people to communicate through the Internet,” said Denton.
“The history of the regulation of speech in this country does not engender confidence that such powers will be used wisely. Canada has experienced several instances in recent times where regulatory commissions of another type and armed with a different mission have challenged the right to say controversial things.
“However, if the Canadian portion of the Internet could be placed under the Act, and speech involving video, or sound, became a licensed activity, we would have reversed several centuries of constitutional evolution and gone back to the days prior to 1688 of licensed printing presses or, in our case, licensed video telephone transmissions as well as licensed computer users. Several important political revolutions have been fought to ensure freedom of the press and speech; it would be repugnant to nibble away at it in defence of anything as comparatively unimportant as Canadian broadcasting policy.”
Amen.
