Altering the Acts: Panel recommends huge future role for a new CRTC, Cancon contributions from everywhere

Renamed Commission would oversee all media in Canada

By Denis Carmel

OTTAWA – Eighteen months, thousands of pages from more than 2000 written submissions, dozens of staff and six panel members have produced a shockingly thorough 235-page report which proposes 97 recommendations to change the Broadcasting Act, Telecommunications Act and Radiocommunications Act.

The CRTC will be dead, long live the CCC

One of the many recommendations from the Broadcasting & Telecommunications Legislative Review (BTLR) panel in its report called “Canada’s Communications Future: Time to Act” is a renamed CRTC where the new moniker would reflect the sweeping new regulatory powers found in many of its other recommendations.

“Its current name—the Canadian Radio-television and Telecommunications Commission—is out of step in a world that has moved beyond conventional radio and television stations, and in which telecommunications now encompasses a wide range of electronic communications,” the Report reads. Instead they propose the name “Canadian Communications Commission”.

It sets the table for what this overhauled Regulator would do.

“Advanced technology is transforming the ways we communicate, entertain and inform ourselves as well as driving economic opportunities and new business models that enhance competitiveness domestically and internationally. These unprecedented opportunities also expose us to significant risks including the growing—and global—threat of privacy breaches, the spread of harmful content and the impact of Big Data on all dimensions of our lives,” said Janet Yale, chair of the BTLR panel.

“A Canada, where everyone benefits from the social, creative and economic potential this new world presents, requires a legislative framework that responds to the challenges of today, while also being flexible enough to address the unknown challenges of tomorrow. Our recommendations for reform are practical and actionable providing the legislative powers and regulatory tools necessary to seize the opportunities and address the risks of the digital age.”

The recommendations focus on five themes:

Bringing all media communications entities into the act

“Our new model is platform agnostic and technology neutral. It focuses on the activities being carried out and establishes consistent obligations to support Canadian cultural policy for all media content undertakings involved in similar activities, ‘the Report says.

This appears to mean that whether you are Netflix or Quebecor, Facebook or Postmedia, Rogers, Bell or Instagram, YouTube or Amazon, you are in the system and subject to regulations which for the first time would cover alphanumeric news content.

All companies (foreign and domestic) offering content would register with the CRTC but traditional companies would still be licenced with more flexibility than the present regime. “All licensees and registrants would be obligated to contribute to Canadian content in a transparent fashion,” the report continues.

“Those who benefit from accessing our market – both licensees and registrants – should have obligations to support Canadian content. Specific requirements would vary depending on the activity being conducted,” reads the report.

The new Act would differentiate among the following activities:

A new role for CBC/Radio-Canada (and no ads)

Advertising on the public broadcaster, on all platforms, would be phased out completely. “The Act would also explicitly state that CBC/Radio-Canada should reflect national, regional and local communities to national, regional and local audiences, and reflect Indigenous Peoples and promote Indigenous cultures and languages, the Report reads.

“We recommend that to ensure the national public broadcaster is able to adapt to a more open, global, and competitive media communications environment, the Broadcasting Act be amended to remove the specific reference to radio and television in the mandate of CBC/Radio-Canada,” it goes on.

Finally, it recommends that the Broadcasting Act be amended to add some elements to the mandate of the CBC/SRC, including the bullet: “taking creative risks.”

Finally, the report recommends the Broadcasting Act (or as they suggest, the Media Communications Act) “be amended to require the federal government to enter into funding commitments of at least five years with CBC/Radio-Canada,”.

A focus on users

Remember, Citizens, Consumers, and Creators now it is Citizens, Users, and Creators. “(W)e recommend that a universal service objective be enshrined in the Telecommunications Act. Affordable universal access to broadband is a must,” the Report states.

There must also be a right for users to have a right to an open Internet enshrined in the new Act.

The ISED Minister would also delegate to the CRTC sole responsibility for establishing terms and conditions of access to wholesale wireless services and for resolving competitive disputes regarding conditions of spectrum licences.

There would also be more funding to support universal service: Every telecom provider should contribute to the CRTC Broadband Fund, but “we do not believe electronic communications service providers, including Internet service providers should be required to contribute to the support of cultural policy objectives,” reads the report. So there would be no Cancon tax on ISP rates since the recommendations call for contributions from all media entities doing business in Canada.

A number of recommendations also address “the crisis surrounding the current model for supporting news.”

For example, the labour-based tax credit for newspapers which announced by the federal government in 2018 would apply not only to print but to audio and audiovisual news delivered on all platforms and “we recommend that the scope of the Broadcasting Act extend beyond audio and audiovisual content to include alphanumeric news content made available to the public by means of telecommunications, collectively known as media content,” the report states.

Accelerating the roll-out of advanced networks

Of course, the Telecom Act should be amended to give the CRTC jurisdiction to allow access to all forms of public property to help the deployment of 5G, says the report.

“(T)he CRTC’s authority over passive infrastructure should clearly include access to all public property capable of supporting such facilities, such as street furniture;

Reimagining the role of the Regulator

“More than an administrative tribunal, a renewed CRTC would have a proactive evidence based orientation that spots market distortions and systemic challenges early on, puts consumers in a position to advocate for themselves, and conducts monitoring and measurement that minimizes the need for more invasive intervention,” recommends the report.

Better funding for public interest participation in both Broadcasting and Telecommunications, and the creation of a Public Interest Committee of 25 persons funded by the CRTC and another for those with disabilities is recommended.

There would be a new composition for the Commission: Chair, Vice-Chair and seven additional Commissioners appointed for a single term of seven years and ALL should reside in the National Capital Region. This number is down from the 13 currently allowed and would be a marked change from the regional commissioner structure the CRTC now has.

The report also recommends the harmonization of timelines for appeals and petitions between broadcasting and telecom as well as between various avenues. (Cabinet and R&V)

Call for immediate action

Recognizing that Government is usually slow in enacting legislation, the Report suggests some measures that should be done immediately.

The report recommends the government roll out funding for broadband in rural and remote areas as soon as possible.

As well, in order to get foreign entities to contribute to Canadian content, the CRTC should hold an immediate hearing to issue a new exemption order so that “those media content curators that derive revenue from Canada and are now exempt from licensing, such as Netflix, are required to contribute to Canadian content through spending and discoverability requirements, consistent with our recommended legislative framework,” reads the report.

The federal government should immediately force foreign digital players to collect federal sales tax.

“The legislation we were asked to review is foundational to our ability as a country to ensure that, in a world of endless choices and voices, there is space for Canadian culture, stories and perspectives including the ability to showcase our  diversity,” said BTLR Panelist Monique Simard. “Our recommendations enshrine the right to a free and open Internet while creating an appropriate framework for the support and promotion of Canadian content.”

Now the ball is in the Government’s court to choose how many of the 97 recommendations it likes in order to incorporate into new legislation it has promised inside of a year.

It will be interesting to see the impact on ongoing proceedings such as the third party internet access (TPIA) review and vary process, the wireless policy review and the renewal of the CBC’s license.

We’ll have more to come on this soon. Please click here for the full report.

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