OTTAWA – A consensus may be emerging which says while we need to change the Broadcasting and Telecommunications Acts, that can be done only as long as those changes don’t involve any playing in my sandbox.
We had this feeling when the Privacy Commissioner appeared and said, essentially: We’re doing fine but please give us more enforcement powers inside the communications business
Then today (Tuesday) when the CRTC appeared in front of the Senate Committee studying change into the two Acts on Tuesday morning, the same thing happened. Senator Rosa Galvez asked “If your situation is the perfect situation or the best situation, why are you behind so much?”
“I’m going to have to first say I’m not perfect, but then I’m going to say we’re not behind. Technology changes rapidly. What’s important is that legislation is future-proofed. Indeed, that’s one of the things we’re talking about in the Harnessing Change report. Even if today we could draw a bright line and say, okay, these things are broadcasting, let’s regulate them, it doesn’t realistically account for what’s coming down in the future or how things change. That’s why we’ve emphasized the need for future regulatory flexibility. I don’t think we’re behind at all,” CRTC chair Ian Scott said in response.
“What we attempt to ensure for Canadians is that on the telecom side we have the most modern telecommunications services available at affordable rates. The fact of the matter is 98% of Canadians have available to them what’s called 4G technology or LTE. That’s the most up-to-date wireless technology. About 80% of Canadians already have access to 50-megabit service. The real challenge there is in rural areas, where we have to figure out a way of getting them up above 40%. The challenge isn’t the technology; the challenge is largely often an economic one, and I don’t think we’re behind in terms of dealing with new technology.”
One Act or two Acts; one Regulator: No need to change, we’re doing fine…
On net neutrality: “The issue in terms of future legislation, from my perspective,” Scott, “is that I agree it should be enshrined in the legislation as an important principle. I would, however, voice a note of caution about being prescriptive. I say that because net neutrality is not a black-and-white situation.
“The Commission has the tools today, interestingly enough, without any mention of the term net neutrality.” – Ian Scott, CRTC
“I will give you a simple example. When it comes to public security or public safety, do we want to be net neutral? Not necessarily. When it comes to a 5G environment and the priority given to driverless cars versus parking meters, do we want to be net neutral? The answer is obviously no. The Commission has the tools today, interestingly enough, without any mention of the term net neutrality.”
The Commission was not the only one being a little defensive. Independent Liberal Senator Dennis Dawson was quite insistent: “Our mandate came at the same time as the government (the one given to the Broadcast and Telecom Legislative Review panel). Basically, we had discussed at the committee the fact that there needs to be modernization of this legislation, so we decided we were going forward.
“At the same time, in a more secretive way, the government was proceeding on their own study. We are going to be more transparent and faster. We would like this to be on the agenda so that people will be debating it not after the election but before the election.”
(Ed note: Former Heritage Minister Mélanie Joly was in a near constant state of public consultation on broadcasting and culture in the digital age during her nearly three years in the role. The federal government was hardly being secretive that it was thinking about these issues, despite the fact that after all that consulting, everything still seems on the table...)
However, like the Privacy Commissioner, the CRTC has its own shopping list to increase its enforcement powers.
First, give the CRTC jurisdiction over support structures that would carry the equipment that would allow 5G to be efficiently deployed. “To install these small cells, a number of issues, such as rights of way, poles and ducts, will need to be resolved. These are tricky issues that cut across municipal and provincial jurisdictions as well as private interests,” continued Scott.
All carriers, it should be noted, are on board with this.
Second, give the CRTC the ability to impose Administrative Monetary Penalties (AMPS) in the broadcasting sector. “We’ve seen how well AMPs work from an unsolicited communications perspective. The CRTC currently uses such tools to enforce the Unsolicited Telecommunications Rules, including the National Do Not Call List. They work, and they incentivize compliance with the law,” Scott added.
But these tools need to have the flexibility to allow the CRTC the discretionary power to adapt these tools to circumstances, he added in French.
FINALLY, ON THE SUPER BOWL and the new free trade agreement (the United States Mexico Canada Agreement, or USMCA) Scott shed light on the next steps on that file. He declined to elaborate on the case brought by rights owner Bell Media still before the Supreme Court, but said: “The current status of the trade agreement (…) there are several steps still required before it is implemented. Trade agreements are generally not self-implementing. That means that each of the countries still need to sign the agreements formally. Typically, you would then have enabling legislation. The government will need to actually amend in some manner the Broadcasting Act in order to direct the Commission to do what that agreement says because at the moment, they don’t actually have a mechanism to tell the arm’s length CRTC to do that.”
And to satisfy the United States, it will probably have to happen before the expert panel issues its recommendations. In fact, it’s assumed this will happen prior to this season’s game February 3, 2019.
The Senate study will continue for several months and their report is expected some time in the new year.
