OTTAWA – The fact that 700 MHz wireless spectrum (taken back from TV broadcasters in 2011 and sold to wireless companies for $5.3 billion earlier this year) will continue to be used to transmit all sorts of video, shows proof we must look at rewriting the legislation governing the broadcasting industry, according to former CRTC commissioner Suzanne Lamarre.
She was speaking Thursday at last week’s Law Society of Upper Canada’s Biennial National Conference on New Developments in Communications Law and Policy held in Ottawa. “The 700 MHz band, formerly designated for over-the-air television… has officially been taken over by wireless services… and what is going to be transmitted over that band, is going to be a lot of cultural content,” noted Lamarre.
“Is this the breaking point where regulation no longer just needs to adapt – and needs to be redesigned?”
While acknowledging the CRTC has already acted as best it can by undertaking a thorough renovation of the regulations governing television in Canada (the official Let’s Talk TV Notice of Consultation, issued just days prior, was on everyone’s minds and was the topic of the session which led with Lamarre’s paper), changing the CRTC policies under the existing and various Acts which impact the television system in Canada may not prove to be enough.
Lamarre noted, for example, Section 3(2) of the Broadcasting Act says the broadcasting system needs to be regulated by “a single independent public authority,” and that’s simply not the case. Broadcasting activities also operate under the Telecom Act, Copyright Act and Radiocommunication Act and is subject to Industry Canada, the Copyright Board and Competition Board. “The CRTC is not a one-stop-shop,” she added.
So, while the Commission has done and is doing its level best to change and adapt, it can’t go as far as required without updating the laws of the land. “I think the CRTC with its notice is stretching it as far as it can, but because of the overlap between the different authorities, and their powers, there are some changes that can not just be done under current legislation as it stands,” explained Lamarre.
While we can agree there is an ongoing fusion of cultural content and technology and we “have all-encompassing networks that can do everything and anything… why do we shy away from having that discussion of ‘should that all be reassessed’?”
However, fellow panellist Yves Mayrand, a consultant and former head of regulatory for Cogeco Inc. encouraged delegates to give up on reforming any of the Acts any time soon, even though he agreed it’s likely a good idea. However, the will to do it simply isn’t there, despite the fact the last time the Broadcasting Act was updated (in 1991), they were still making new episodes of Knots Landing and Dallas. “It’s not at all clear to me there is an underlying social consensus within the Canadian public of what it is that is crucial to broadcasting policy… It’s unlikely we’re going to have statutory change in the very near future,” he said.
“Let’s try to make sure that what remains of our system continues to evolve in a more consumer-friendly fashion.” – Yves Mayrand
“It seems to me we no longer really have a single system. We have a regulated system and we have an unregulated system that is growing very fast and… the inescapable conclusion is that there are expectations out there that the system, or the system that we have remaining, must accommodate,” the unregulated system, explained Mayrand.
“So, let’s try to make sure that what remains of our system continues to evolve in a more consumer-friendly fashion.”
The Canadian Media Production Association chief negotiator and chief legal officer Reynolds Mastin, however, fretted about how this new consumer-in-charge world would affect his members’ futures. He lifted the lid a little on what the CMPA likely has planned to tell the Commission – that video is video, no matter how it’s delivered – and that TV and film producers should at least be getting a piece of the revenue collected by ISPs in Canada. Many call it a tax on the system.
“I prefer the term broadcasting distribution contribution,” said Mastin.
“Question number one: Is it broadcasting? If it is, is the broadcasting undertaking in a position to materially contribute to furthering the objectives of the Broadcasting Act? We very much appreciate the fact that question has now been raised again within the public notice. We think it’s very relevant and timely.”
“We can also think of a few unlicensed, unregulated players who, if that test is applied, could amply contribute to furthering the objectives of the Broadcasting Act.” – Reynolds Mastin, CMPA
Of course, those with opposing points of view will recall that the Supreme Court ruled back in 2012 ISPs are not broadcasters, but that doesn’t preclude the CRTC from going down a similar path with perhaps a different question.
“What’s going to be interesting is what the scope of that question is,” said Mastin, “because when the question is framed that way, not only can we envision areas of broadcasting conducted by the vertically integrated players and broadcasters generally that are currently exempt, but we can also think of a few unlicensed, unregulated players who, if that test is applied, could amply contribute to furthering the objectives of the Broadcasting Act.”
