OTTAWA – While it is still unclear how the interventions to the Broadcasting and Telecommunications Legislative Review (BTLR) Panel will be made public and when, the CRTC published its comments one day before the deadline!
Not much news in the CRTC proposal to the BTLRP for those who have been following the publication of its Harnessing Change: The Future of Programming Distribution in Canada, the Chairman’s speeches in front of the Senate Committee on Transport and Communications and at the IIC. Then again, the Chairman is not known for his showmanship.
So, it is no surprise that the Regulator’s suggestions are aligned with his asks in those forums: Instead of objectives, give the Commission desired outcomes and allow the Commission the flexibility to achieve them and also give it the powers to accomplish its tasks. Get rid of the list of conflicting policy objectives, 20, in Section 3 of the Broadcasting Act and 9 Section 7 of the Telecom Act. As the document states “Ideally, new legislation should establish those outcomes and allow regulators the discretion to determine how to best make use of the tools provided by legislation to pursue those outcomes.”
To paraphrase: Tell us what to do but not how to do it.
It’s not clear at this time how this could be formulated in a new legislation, but most importantly, in a system built on checks and balances, it is clear the CRTC has requested more powers (such as the ability to monitor truth in news and trustworthiness of news outlets, or what is more commonly and ignorantly referred to as “fake news”). However, while the present administration may be able to execute its tasks appropriately, if a future CRTC administration starts using its powers in a manner that is not compatible with its understood mission, problems may arise.
“Today, some of our legislative powers and regulatory approaches lag behind even current technological and social realities,” the CRTC says in its submission, but there is yet no clear indication on the urgency to change any portion of the Acts outside of a few tweaks. “The tools developed for the future must be flexible enough to continuously adapt to the unforeseen changes that will be the norm,” it adds.
Of course, the most urgent one is the access to structure aspect where there are multiple jurisdictions dealing with infrastructure access that will be critical for the deployment of 5G: “New legislation should provide a single regulatory body, such as the CRTC, with direct authority to resolve disputes, order access and establish guidelines (as appropriate) with respect to all passive infrastructure owned by utilities such as power, gas, water and local authorities. This additional authority should also be applicable to non-traditional structures for which access will be key for the efficient deployment of many future technologies. This would include light poles, bridges, water towers, street furniture and privately owned buildings such as high-rises and office towers.”
“New legislation should grant the CRTC explicit statutory authority as well as flexible tools to regulate services, both domestic and international, including online service providers, who offer audio or video services in Canada and benefit from the creative, economic and social advantages of operating in this market.” – CRTC
We think there is already a large consensus on this among those in the business, and were it not for the federal-provincial-municipal issues, it could be resolved tomorrow morning.
Extending power to regulate resellers in the Telecom Act is also a small change that is required but hardly revolutionary, or new.
Here is what The CRTC says on net neutrality: “The current legislation, modified to extend certain powers to apply directly to resellers, would provide the CRTC with the required authority to continue to uphold the principle of net neutrality for all telecommunication services.”
But the most important one also seems to make consensus: “New legislation should grant the CRTC explicit statutory authority as well as flexible tools to regulate services, both domestic and international, including online service providers, who offer audio or video services in Canada and benefit from the creative, economic and social advantages of operating in this market. Such an approach would aid in ensuring that all players contribute in an equitable and effective manner to achieving the public policy outcomes established for new legislation, including the promotion and discoverability of Canadian content,” reads its submission.
As the Review Panel indicated when it launched its consultative process: “To this end, those submissions that offer not just perspective and insight but detailed suggestions, are evidence-based and include relevant legal or policy research, and measures or models adopted in other jurisdictions would be valuable. Specific areas of proposed amendments to the Telecommunications Act, Radiocommunication Act, and Broadcasting Act would also be helpful.”
Frankly, the CRTC proposal seems a little short on specifics. Maybe they should have requested more time…
Then comes a list of issues akin to what we have in today’s legislation: “Any new telecommunications and broadcasting legislation should include a specific policy objective or outcome of proactively creating barrier-free access to Canada’s communications system by people with disabilities,” and, “an outcome of any new legislation should be to provide broad and unequivocal access to Indigenous Peoples and reflect their needs in Canada’s communications system,” and, “any new broadcasting legislation should continue to recognize the distinct needs and interests of Canada’s official language minority communities and the importance of programming reflecting those needs and interests.”
More powers to impose Administrative Monetary Penalties for non-compliance for the totality of the Telecom and Broadcasting Acts is also requested by the Commission.
Lastly, one suggestion that seems appropriate these days: “The CRTC recommends adopting a model for supporting public participation with stable, predictable public funding for qualified public interest participants both for participation in proceedings and for building expertise outside the context of a proceeding.”
Written submissions from all other players will be made publicly available through the Panel website after the deadline, which is January 11, 2019.
The Panel’s consultation process will also include participating in a number of industry and academic conferences and meeting with a cross-section of experts, creators, stakeholders and other interested parties, including those from Indigenous and official-language minority communities, it adds. Will that all be public? We don’t yet know.
The Panel expects to issue a report in June 2019 on what it has heard during this consultation process. We do not think that there will be a reply phase to these.
The final report is due to the federal government by January 31, 2020.
Original artwork by Paul Lachine, Chatham, Ont.
