OTTAWA – The final segment of the 16th Annual Conference of the International Institute of Communications, held in Ottawa on October 31st and November 1st, was unusually staged with the chair of the Broadcasting and Telecommunications Legislative Review Panel (BTLR), Janet Yale, at a lectern on the right-hand side of the stage and moderator Lawson Hunter, senior counsel, Stikeman Elliott and a legend in the regulatory realm on the left lectern.
The remaining six members of the expert panel, Hank Intven, Monique Simard, Monica Song and Pierre Trudel, Marina Pavlović and Peter Grant were seated on high chairs between these two. The program indicated that they would participate in a town hall discussion to hear from stakeholders on possible legislative changes that the expert panel might consider recommending to the federal government.
But the expectations and the rules of the game were not quite clear. The panel can not show any of its cards at this point, only speak to the rules of the game. Therefore, Lawson Hunter spoke for most of the first part while Janet Yale answered the scarce question from the audience, and panel members remained mostly quiet. We found out later that they were all in a listening mode and they had agreed not to speak too much and give the floor to the audience in true town hall style.
The audience was eager to hear from them and get their point of view on the issues facing the industry. These panel members are smart, knowledgeable and prudent enough not to make mistakes. After all, this process is not a judicial proceeding, they all come to this with their own leanings and together we expect that they will produce a report which will help government adopt new legislation, eventually.
Eventually, though Hunter got the ball rolling and audience members started asking questions that helped shed light on the process and eventually they made proposals that were thought-provoking, and the panel members found their voice.
Process
This event was a bookend of two parallel processes that actually started on Tuesday, with the appearance of the Chair of the CRTC in front of the Senate Committee on Transport and Communications on their own examination of the Broadcasting and Telecommunications Legislation. Their witness on the next day was Janet Yale and Monique Simard of the expert panel.
The IIC conference was held on Wednesday and Thursday and culminated in the CRTC chair’s speech at lunch on Thursday followed by the event with the panel members who closed the Conference.
It was a busy week for regulatory folks and the reporters who cover them!
Of course, the panel started with Hunter saying that he had been telling the government for a long time that they should conduct such a review, especially on the Broadcasting side. Then Yale said that their focus was about changes to the legislative framework and that they are not running a CRTC type proceeding, that people have until November 30 to submit their views in as clear and precise form and proposed wording for legislative amendments is welcome. Do not expect there will be a reply phase said Yale. Your best shot better come November 30th.
John Lawford, from the Public Interest Advocacy Center, reflecting the thoughts of a lot of people in the room, said the deadline was too tight and asked for a two-month delay. Yale, to the relief of the BTLR secretariat in the back of the room, held firm then. On Monday though, after hearing from more than just PIAC asking for more time, the BTLR panel relented and extended the comments deadline until January 11, 2019.
The reason, of course is an interim report must be submitted to the federal government in June 2019. That interim report will be a “what we heard” report but will also outline areas of large consensus and areas of conflict (and perhaps some things that can be done more immediately which need not wait for new legislation). Simard, a panel member, said that the government firmly intends to legislate and that the 31 question in the Terms of Reference constitute the core of their examination. She warned that amongst the specialists in the room, the tendency will be to focus on details and forget a holistic vision of the sector.
Industry members were encouraged to think beyond their own interests and how what they might want to see in new Acts could affect other groups or companies, and Canadians.
Schulich School of Business professor Dave Barrett, a regular at these gatherings (and a Cartt.ca contributor whose most recent column, which suggested it may take until 2025 until the new Acts are finished, was cited repeatedly during the conference), suggested unbundling the review to run a parallel process to look specifically at the CBC since it is part of the terms of reference and it would be a daunting task by itself. A flat no was given as panel member Peter Grant noted that in the 25 years since the last legislation was enacted no less than seven extensive reviews by Parliament have been done on the CBC’s mandate, so there’s enough on the record to inform them about the only broadcaster mentioned by name and given its mandate in the Act.
Panel member Pierre Trudel said that they likely will try to produce a prototype of legislation to present to government to speed up the drafting and gain time, but it is too early to guarantee that.
Panel chair Yale mentioned that research mandates would be commissioned after the deadline for written comments, those studies would be made public – and she did not open the door to a comment period on this. It is still vague what type of research we are talking about except for the obvious on international experience and legislative frameworks.
Panel member Marina Pavlovic warned that it is not a given that the “Harnessing Change” report issued by the CRTC in May at the request of the Government will be taken for granted.” Think broader,” she said.
Suggestions and pushback
Then came the part where the apparent consensus fell apart and cracks became apparent, as was bound to happen. In response to the moderator’s suggestion that the CMF mandate and structure be reviewed and that more export of Canadian content would be better, Valerie Creighton, president and CEO of the Canadian Media Fund jumped into the fray said that the selling of content on the international market place is already a success and that although she had been asking herself for a different structure and mandate, we have to be careful. (However, we do not think the panel will go in such detail as proposing a specific structure for the CMF but perhaps suggest it be done, but this is indicative that still is prevalent).
Discussion about increase contribution being directed directly to government who in turn could fund Canadian production of Canadian funding did not generate consensus. How much are Canadians willing to pay for the production on Cancon, Lawson Hunter asked?
Finally, in response to Hunter’s question about ending the current licensing regime in broadcasting he first commented that the licensing regime was a legacy of the attribution of a scarce resource (spectrum) and that the realities of streaming and IP delivery will see this approach fade.
With service agreements between a regulator and a service provider, the regulator would need adequate enforcement tools toward, amongst others, foreign providers with no presence in Canada. So such an adequate tool could be throttling of foreign content in Canada if outside players didn't agree to contribute. But that would require political will and regulatory lawyer Chris Taylor, who suggested the idea, seemed to be doubtful about such will with that idea.
Conclusion
We now know more about panel members, the process. The mandate is simple, but the real question remains: Do we need incremental change or to blow the system up? Entitlements and regulatory bargains are the cement that hold together a carefully constructed edifice over the years, but it is crumbling. Can the panel deliver a report that they will push the Government outside its comfort zone and bring necessary changes? We will see.
