WE DON’T YET KNOW what public process the expert panel reviewing Canada’s Broadcasting, Telecom and Radiocommunication Acts, headed by Janet Yale, will follow as this year unfolds.
So, when the deadline for written submissions to the Broadcast and Telecom Legislative Review (BTLR) panel came on Friday, January 11, we asked various companies and groups for their submissions. Most gladly sent them. Some sent excerpts. Others decided to keep them private for now, since the panel itself has not yet told us, or anyone, definitively, what the plan is for making them public.
Because of the volume, we have decided to begin with two stories. This one will cover the biggest, publicly-traded companies, where the next will cover independents and some interest groups.
“It will not be a simple or straightforward exercise to update and modernize the legislative framework for Canada’s communications sector,” said Rogers Communications in its executive summary. Absolutely. However, RCI urges the panel not to go crazy and make change for the sake of change. “It is important not to lose sight of the fact that the current legislative framework has been flexible and has succeeded in enabling the development of a communications system in Canada that rivals that of every other country in the world.”
That could be the thread throughout this story where the big companies would change what have been irritants for the last few years while we are doing this exercise but don’t rock the boat too hard. (Not all of the big companies or organizations forwarded their submissions to us Friday or over the weekend. Most did. Corus Entertainment and Bell Canada have so far chosen not to.)
Of the ones we received, all agree there should be no tax on ISPs to pay for Canadian content. However, they also agree that non-Canadians operating in Canada should contribute to the system somehow since they all also agree that access to infrastructure should be facilitated. All (Rogers, Shaw, Cogeco, Telus and Quebecor, for this story’s purpose) agree that the Broadcasting and Telecommunications Acts should remain separated but on the Radiocommunications Act, the jury is still out. While Telus would recommend merging the Telecom and the Radiocommunications Act, Quebecor is strongly opposed. “A useless and unjustified decision,” its submission reads in French.
Broadcasting
Rogers proposes to: “Amend the broadcasting policy and regulatory objectives in subsections 3 (1) and 5 (2) of the Broadcasting Act to
- require the Commission to rely, to the maximum extent feasible, on market forces as the means to achieve Canada’s broadcasting policy and regulatory objectives;
- acknowledge the importance of ensuring that Canadians can continue to access professionally-produced news and information programming; and
- protect the integrity of the Canadian broadcasting system, including preserving a distinct program rights market where possible and establishing measures to prevent program piracy and content theft.”
Rogers would also grant the Commission the express and specific authority under section 9 of the Broadcasting Act to regulate online service providers by establishing a new regulatory mechanism involving service agreements. It would also give the Commission the power under subsection 12(2) of the Broadcasting Act to impose administrative monetary penalties to ensure compliance with licence conditions and service agreements. (including foreign entities)
Telus proposes that a new Broadcasting Act be anchored by the following two definitions: “Programming services” which are undertakings that exercise control over the availability of programs in Canada; and “content aggregators” which are undertakings that aggregate and curate content by licensing it on a non-exclusive basis and making it available to Canadians.”
Under Telus’ proposed terminology, foreign services such as Netflix, Amazon Prime or Facebook Watch would qualify as “programming services.
The western-based telco also wants to rework the notion of elements: The Act talks about “the Canadian broadcasting system, operating primarily in the English and French languages and comprising public, private and community elements,” but Telus argues the community element is no longer relevant (thanks to what’s online and unregulated) and that we should introduce the notion of foreign elements and describe each of their roles in the system.
“Eliminate any licensing requirements for ‘content aggregators’ as they do not exercise the same degree of influence over programming decisions (the main concern in respect of the maintenance of cultural sovereignty) and therefore should not be subject to licensing, nor any foreign ownership restrictions.” – Telus
New legislation should “eliminate any licensing requirements for ‘content aggregators’ as they do not exercise the same degree of influence over programming decisions (the main concern in respect of the maintenance of cultural sovereignty) and therefore should not be subject to licensing, nor any foreign ownership restrictions,” continued the Telus submission.
Cogeco proposes something different for OTT players which could be done immediately: “If the Government opts for a required contribution for all, the Governor-in-Council could issue a policy direction to the CRTC under s. 7(1) of the Broadcasting Act directing the CRTC to require all such online service suppliers, whether Canadian or not, to report periodically to the CRTC on the number of their Canadian subscribers, subscription and advertising sales above a de minimis threshold, and directing the CRTC to review its Digital Media Exemption Order so as to require these online service suppliers to contribute fairly and equitably to the financial support of Canadian information and entertainment content as a condition of licence exemption.”
(Ed note: The Commission asking foreign OTT companies for their subscriber numbers. We seem to remember that has gone sourly in the recent past…)
Shaw, in its submission said (and this is unlikely to be received well by certain other groups) it would like to see new laws “remove the 5% revenue contribution requirement by BDUs and other financial obligations, including Part I and Part II fees, which diminish the financial viability of the broadcasting distribution system, impede investment and, ultimately, undermine the competitiveness of BDU services.”
This would effectively kill off most of the funding for the Canadian Media Fund. However, Shaw does say the federal government should force foreign OTT streamers to collect sales taxes and that the feds should redistribute that new money to Canadian content production.
As well, Quebecor disagrees with CBC/Radio-Canada which said if the Corporation ceased to air advertising it would benefit TVA. That money would probably flow to non-Canadian platforms, but Quebecor doesn’t go as far as suggesting the public broadcaster keep selling advertising.
Telecom
All agree that the Telecom Act doesn’t need to be amended to directly consider net neutrality, except Rogers. “The principle of net neutrality, which is tied to the long-standing principle of common carriage, should be formally acknowledged in the Act. Such a principle should also recognize that neutrality and openness of the Internet would have to accommodate certain public interest objectives, such as the protection of privacy and personal security for digital consumers, provided that these accommodations do not impede technological innovation.”
The others note that the Telecom Act already protects net neutrality in section 27(2) which says “No Canadian carrier shall, in relation to the provision of a telecommunications service or the charging of a rate for it, unjustly discriminate or give an undue or unreasonable preference toward any person, including itself, or subject any person to an undue or unreasonable disadvantage.”
The companies also argued the Telecom and Radiocommunications Act should be amended to ensure faster treatment when it comes to spectrum and tower allocation as well as final rate approval.
All but Telus got together to commission a legal opinion from Michel Bastarache, CC, QC, former Supreme Court Justice which supports amendments to section 43 and 44 of the Telecom Act to give jurisdiction to the CRTC on passive structures for deployment of 5G and other issues. All telecom companies are united in the belief that the Commission, and not various levels of provincial and municipal governments, should be the final word on infrastructure access and rates.
“The detailed analysis performed by the Honourable Mr. Bastarache concludes that such proposed amendments to the Telecommunications Act would be intra vires due to the Parliament’s legislative power over telecommunications and that any provincial measures that address the same subject matter would be inoperative pursuant to the legal doctrine of federal paramountcy,” reads Cogeco’s submission.
Telus has asked for at least one change the others have not. “The Governor in Council’s power (under the Telecommunications Act) to vary, rescind or refer back CRTC decisions should be repealed,” said its submission – and the company produced a 23-page memo by McGill Professor Richard Schultz on the need for an independent regulator, completely unencumbered by any government intervention. Funnily, the professor starts his paper by quoting Anthony Manera, the president of the CBC from 1993-95, saying to chairman of the CRTC of the time: “You play rather loosely with the Act.”
“It’s an old habit of mine, “responded then-CRTC chair Keith Spicer.
Telus should be commended for two things: Despite short timeframes they produced an extensive document (easily the largest, most detailed submission we have seen so far) proposing specific language for legislative amendments – and for making proposals on issues where they have no vested interest.
Far from agreeing with everything they propose, it is a valiant effort. They even go into DNCL and CASL where others did not dare to go.
While we have not done an extensive assessment of all proposals yet, more is coming and we are told we will find out today (Monday) from the BTLR panel just what the plan is for the publication of the submissions.
We realize that more than 25 years ago (when last these Acts were amended) Rogers, Cogeco, Shaw, Telus and Quebecor were small regional players who have grown by leaps and bounds under the current regime, so they are far from rejecting the laws we already have on the books. They are generally proposing only updates to the present regulations. Normal under the circumstances. They have a propensity to fix today’s irritants rather than anticipate future ones.
Anybody mention 6G yet?
The next story, to be posted later this week, will have a first look at the submissions by independent broadcasters, creative and consumer groups. Please email us directly if you have any story ideas or angles you think we should be pursuing on this topic. Your email will be kept confidential.
Original artwork by Paul Lachine, Chatham, Ont.
