Making competition illegal to support broken business models must be opposed
By Tim Denton
THE BROADCAST AND TELECOM Legislative Review (BTLR) panel report, also known as the Yale Report, went an order of magnitude further than many assumed it would in seeking to expand the power of the CRTC, through the Broadcasting Act.
Not content with placing all full motion video into the jurisdiction of the Commission, it also proposed that written materials (alpha-numeric text) be subject to federal regulatory authority when the content in question is news. It should be noted that Brad Danks did not rely on these recommendations in his articles in Cartt.ca.
Those recommendations read:
51. 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. We further recommend that the definition of “program” in the Act be modernized and replaced by the following:
1) Media content means audio or audiovisual content or alphanumeric news content;
2) Audio or audiovisual content means sounds or moving images, or a combination of sounds and moving images, interactive or not, that are intended to inform, enlighten, or entertain and are made available to the public by means of telecommunications. However, this definition does not include such transmission when made solely for performance or display in a physical public place, or images that consist predominantly of alphanumeric text and are not accompanied by sounds;
3) Alphanumeric news content means news about current events that predominantly consists of alphanumeric text that is made available to the public by means of telecommunications.
Orders of magnitude expansion of regulated subjects
Let’s look at the scale of the expansion of potential licensable subjects, and the of decision points necessary to achieve this scheme of regulation.
Under the current scheme, there are already about 4,000 to 5,000 regulated entities under the Broadcasting Act, which includes television, radio and other programming enterprises. As a rough comparison, there are 2.9 million dot-ca names registered with Canadian Internet Registration Authority. Dot-ca names require a Canadian to hold them. Make any assumption you care to regarding how many websites depend on a dot-ca domain name, then add in the websites registered to Canadians in the dot-com, dot-org and other domains and the number of regulable entities in Canada would be on the order of millions.
Then consider the CRTC would then have to decide which sites constitute “news” and which do not. This set of decisions is made necessary because licensable entities consist of all those who “broadcast” full motion video, but only those alphanumeric sites that constitute primarily of “news” and that are not accompanied by sounds.
Now go to the electronic version of any “newspaper”. How much is print on screen, and how much is video clips with sound? Has the BTLR decided that the modern mixed-media “newspaper”, with video clips and sound, is a broadcaster? Apparently yes. Have the lawyers for the newspapers looked at this yet? Do they look forward to being licensed under the Broadcasting Act?
The number of decision points would include:
- Whether a document is “news about current events” within the meaning of the definition
- Whether it is for performance in a public space
- Whether it is accompanied by sound
Then consider loading a video onto YouTube. Assume YouTube is not within Canadian jurisdiction, or contests the assertion of federal broadcasting jurisdiction over it. Are you a “broadcaster” when you load a video of the moose getting into the swimming pool? Apparently so.
Penalties
Then consider the penalties of broadcasting without a licence or in contravention of an exemption order.
“Broadcasting” without a licence is a very serious criminal offence, involving jail terms and massive fines per day, which are multiplied by ten if the offender is a corporation. Thus offending against a licence or an exemption order is a very serious affair, involving the risk of huge fines and prison time.
Constitutionality
Nor do we think the BTLR panel’s proposal is constitutional. Arguments to that effect are laid out in the brief that the Internet Society, Canada Chapter, submitted to the federal government on the BTLR. The ISCC does not think it is within the power of Parliament to delegate to a regulatory agency powers over speech that are as extensive and intrusive. The Broadcasting Act may declare full motion video to be “broadcasting” because it is “programming”, but ISCC does not think the regulation of all full motion of every kind was ever intended by Parliament and would not be supported by the Courts, let alone the public and elected politicians.
Exemption orders
The proponents of this vast expansion of state power say “exemption orders” will solve the problem. An exemption order under Canada’s Broadcasting Act still means you are communicating by permission of the state, only it is blanket permission to speak as long as you do not offend the conditions of the order. An exemption order is licensing by a general condition governing a class of people. So, do not accept the argument that when you belong to an exempted class of licensees, somehow you have been deregulated. An “exemption order” means the CRTC has decided that you are “broadcasting” but for reasons best known to itself you are not worth regulating as a broadcaster.
Alternatives
The proposals of the BTLR report would engender a vast expansion of state regulatory authority. Other methods of financing or subsidizing domestic television production and newspapers would be more effective because they are more targeted – and this is why I likened the BTLR panel proposals to burning down the house in order to roast a pig in Part I of this analysis.
Make no mistake. The licensing and the registration scheme proposed by the BTLR report constitute forms of taxation, as well as controls.
Conclusions
The authors of the ISCC response have been involved intimately in the creation of the 1991 version of the Broadcasting Act. Some of us have been commissioners, sitting on broadcasting and telecom panels, and have discussed the matters brought before the CRTC. We have intimate knowledge of what would be involved in making the BTLR’s recommendations come to pass.
“The centralization of authority over innovation, and people’s rights to communicate, that the Report foresees is massive, repressive, and odious.”
Without the slightest disparagement of CRTC staff and commissioners, past or present, no group of human beings, no matter how wise, well-qualified, or brilliant, and no matter whether they are assisted by a staff of 400 or 4,000, is capable of making the number, scale, kind and importance of decisions that the BTLR report would call upon them to make.
The centralization of authority over innovation, and people’s rights to communicate, that the Report foresees is massive, repressive, and odious.
The moral opprobrium that the BTLR report deserves is based on its naked greed, not its errors of judgment. It’s a recipe for taking everything we value in modern communications: its freedoms and its innovative possibilities – and turning them into a licensed (and therefore government approved) system of feeding money to certain kinds of content producers – Canadians of the right stripe, friends of the broadcasting regime, insiders, and rent seekers.
All this would be at the expense of outsiders, innovators, free-thinkers, and just plain folks who upload thoughts and videos to the Internet. It is elitist, snobbish, and designed to maintain the oh-so-comfy world of the in-crowd. What makes it more aggravating is that they think they can get away with it, and – worse – they may be right.
Let me tell you a true story of the Broadcasting Act. I once sat on a panel judging those who had fallen afoul of the CRTC regulations spawned by the Act. A radio station in Thunder Bay broadcast a Lutheran service in Finnish every Sunday. The station had been hauled up for failing to observe the Canadian content regulations, as in how many hymns have been composed by Canadians in the Finnish language?
Seriously, they were before us for that reason, though I don’t know whether any Anglican or Catholic services on radio have been brought up on charges for the same reason.
It turned out that there was one hymn in Finnish composed by a Canadian, and the ruling of the CRTC was that they had to use that hymn in every service broadcast. Can you imagine?
Whether the ruling was within the powers of the CRTC would have made an interesting question for the courts. The management of the radio station had no inclination to challenge the Commission’s jurisdiction, and so far as I know, the CRTC has to this day regulated the content of a broadcasted Finnish language religious service in Thunder Bay.
That was my breaking point with the Broadcasting Act: Regulatory overreach, a myriad of conditions, and an obsolete conception of what communications can and should be. The BTLR panel wants to expand the number of regulated content providers by two or three orders of magnitude, from a few thousands to millions of people.
That means you and me.
When your business model is broken, make your competition illegal. That, my friends, is the strategy of the BTLR report and of its followers. It needs to be opposed by every thinking Canadian.
Tim Denton is a lawyer and former CRTC commissioner and chairman of the Internet Society Canada Chapter. Part I can be found here.
Original artwork by Paul Lachine, Chatham, Ont.
