OTTAWA – The merging of the statutes governing the communications industry has been addressed a number of times in the past. The first panel session at this year’s Communications Law and Policy Conference attempted to put some meat to the bones of whether having unified communications legislation would be good, or bad, for the sector and even if it’s doable at all.
Former CRTC commissioner Tim Denton provided a pretty succinct argument as to why the Broadcasting Act and Telecommunications Act are essentially incompatible, can’t be unified and be effective at the same time. On one hand, the Telecom Act seeks non-discriminatory treatment of traffic, or discrimination on just and reasonable terms, whereas broadcasting legislation is predicated on discriminating in favour of Canadian content.
“You cannot essentially combine thou shalt discriminate in favour of one class of traffic with thou shalt not discriminate in favour of one class of traffic in the same statute and have any sense in which one must necessarily prevail over the other,” he said, describing a combined piece of legislation as “radically incoherent”
After Denton’s rather clear explanation of why combining the two acts is a non-starter, the panel got mired in debate about Canadian content funding and whether a portion of broadcasters’ online revenue should be put towards Cancon.
“The Commission can impose a spending obligation on Shomi and Cravetv by simply adding it as a condition of eligibility under the Digital Media Exemption Order.” Jay Thomson, CMPA
The topic du jour in the Canadian communication industry, particularly the broadcasting sector, is the impact of over the top services such as Netflix as well as domestic services Shomi and Cravetv on the conventional system. For the Canadian Media production Association (CMPA), the answer is simple. It’s about ensuring there is enough money in the system to support the creation of a diversity of Canadian content. And under the current regime, where online broadcasting services are exempt from regulation, Cancon is losing out as revenue bleeds from the traditional system.
If, as the CRTC has stated, greater numbers of Canadians migrate to the online platform, the amount of funds available for production will dwindle. So this means the CRTC has to exercise its power and force online broadcasters to contribute to programming. The mechanism is simple to implement, noted Jay Thomson, VP of broadcasting policy and regulatory affairs at the CMPA.
“The Commission can impose a spending obligation on Shomi and Cravetv by simply adding it as a condition of eligibility under the Digital Media Exemption Order. A more elegant and targeted way would be for the Commission to revise its definition of broadcasting revenue so as to include the revenues that Bell, Shaw and Rogers generate online,” he said.
Others on the panel thought attempting to broaden the funding pie for conventional television was the wrong approach.
For Michael Geist, University of Ottawa law professor, the key questions to be answered are whether the CRTC should step in and what it should regulate. Rather than trying to squeeze money out of the broadcasters’ online activities, which could amount to a meagre $10 million to $15 million, the Commission should focus on creating a level playing field for all parties to compete in the online arena. This can be done through net neutrality and robust vertical integration provisions, he believes.
“What we need is not so much new ways to finance (programming), but instead rules that ensure that all, no matter big or small, where they come from, can effectively compete in a global medium that offers up opportunities that the conventional broadcasting system can’t and never has,” he said.
“Dealing with Industry Canada is more like bargaining at a flea market for a used stereo. You don’t quite know what they’re thinking about.” – Ken Engelhart
While the majority of the session was fixated on the broadcasting side of the house, Gregory Taylor of Ryerson University, spoke about how moving control of spectrum into the CRTC and out of the hands of the Minister of Industry, would be beneficial to the telecommunications industry. During his opening remarks, he highlighted the problems of having spectrum, a critical public resource, rest in the hands of the Minister has been problematic.
Taylor described the current state of spectrum management, specifically its allocation, as one of “political maneuvering institutional uncertainty that currently serves neither industry nor the Canadian public.” Rather spectrum allocation should be subjected to scrutiny in a transparent manner much like the processes used by the Commission.
Comments made by former Rogers Communications’ SVP regulatory Ken Engelhart to Taylor make the situation clear.
“The CRTC is very good at operating as a quasi-judicial regulatory body. You get an opportunity to state your case, and more or less they base their decisions on the evidence. Dealing with Industry Canada is more like bargaining at a flea market for a used stereo. You don’t quite know what they’re thinking about. You don’t quite know who you’re talking to and you don’t quite know what the evidence is that’s influencing them.”
