OTTAWA – The CRTC’s seemingly willy-nilly approach to mete out non-compliance justice leaves a lot to be desired, according to a panel of experts at the Communications Law and Policy Conference at the University of Ottawa Friday.
Research from Dr. Genevieve Bonin, assistant professor in the Department of Communications at the University of Ottawa, highlighted the discussion. For one study, she examined nearly 300 commercial radio station licence renewals from 1997 to 2007 in which 101 resulted in renewal terms less than the maximum seven years because of non-compliance issues. In addition, Bonin also spoke with people involved in the process including CRTC staff and commissioners, lawyers and special interest groups.
Despite there being clearly defined criteria against which a licensee would be judged for non-compliance (one would think this would result in an objective decision), she found that they were quite subjective. For example, personal dealings with station owners plays a role in a licence renewal.
“Although I think common sense has be to be part of the decision making, it did surprise me that so much of the actual decision-making results in subjective decisions even though there are specific criteria built into the process and you have precedence that exists in previous decisions,” Bonin explained during her opening remarks.
A second study of 80 radio station ownership transactions between 1998 and 2013 revealed the same sort of inconsistent enforcement. In reading the decisions, one could attribute the inconsistency to many things, including that the CRTC simply omitted information or the decision was shortened to make it lighter.
“But there was no obvious reason for one or the other,” said Bonin.
“Someone who didn’t respect their Cancon requirements on a such a day and then when someone else does it two years later, why are they treated differently in the same situation?” – Genevieve Bonin, University of Ottawa
Asked whether the Commission should be bound by previous decision, she added that, yes, it should be because it just doesn’t make sense to treat two parties differently for the same non-compliance infraction. “Someone who didn’t respect their Cancon requirements on a such a day and then when someone else does it two years later, why are they treated differently in the same situation?” asked Bonin.
While many of the Commission’s problems stem from an internal failure to treat all licensees in a similar manner, government intervention and contradictory policy objectives also contribute to an ineffective enforcement process.
Perhaps on the biggest enforcement differences between the Telecommunications Act and the Broadcasting Act is that the former gives the CRTC the ability to levy fines, or administrative monetary penalties (AMPs) while the latter has no such provision. This means, according to Ann Mainville-Neeson, VP of broadcasting policy and regulatory affairs at Telus Corp., the Regulator has had to get creative in dealing with non-compliance on the broadcasting side.
Short-term licence renewals have been the mainstay, but now the CRTC has opened the door to customer rebates. For example, if the beginning or end of a television program is cut off because of simultaneous substitution, the Commission has said (as part of the Let’s Talk TV policy review decision) it will force the broadcast distributor to rebate customers a portion of their monthly bill.
“That certainly, to some people, looks very much like an administrative monetary penalty,” she said, noting this approach is now being challenged at the Federal Court of Appeal. “The Commission’s desire to be creative is challenged, but we can understand why they’re doing this because otherwise it does not have the (same enforcement tools) as it does on the telecom side.”
Bonin cautioned that giving the CRTC AMPs for broadcasting won’t fix its inconsistent approach to enforcement.
“Before jumping the gun and providing the CRTC with more latitude with regards to administrative monetary penalties, I think it’s necessary to take a long hard look at the current mechanisms in place to ensure compliance, to limit irregularity and provide the industry with consistent decision-making based on criteria that can be evaluated,” she said.
Regulation by Twitter, contradictory policy objectives
Dr. Samuel Trosow, an associate professor in the Faculty of Law at the University of Western Ontario, argued that the CRTC will always face challenges in regulating the telecommunications sector because of conflicting policy objectives. For example, he says section 7 of the Telecom Act has public-good policy objectives, but then it adds the Commission should increasingly rely on market forces. These two don’t jibe, he said.
But perhaps more importantly though, government can intervene whenever it likes and for just about any reason.
"I think the CRTC is put in a terrible position when they’re at first given a set of statutory objectives that conflict with each other and then they’re told they are one tweet away from having their decision shut down.” – Samuel Trosow, University of Western Ontario
“I think the CRTC is put in a terrible position when they’re at first given a set of statutory objectives that conflict with each other and then they’re told they are one tweet away from having their decision shut down,” said Trosow.
The federal Conservatives famously tweeted after day one of the Let’s Talk TV hearing last fall that there would be “no Netflix tax” no matter what. The Commission was still considering the evidence and a decision was months away.
Mainville-Neeson agreed that this type of government intervention is problematic. By using Twitter to provide policy direction to the CRTC, an expert tribunal, “I think is highly inappropriate and very unfortunate.”
Services and applications that may cross over between the two acts is also causing a stir within the communications sector and creating enforcement challenges. In one case, the CRTC opted to look at an appeal of Bell Mobile TV under the Telecom Act and now parties have been granted leave to appeal that decision at the Federal Court Appeal.
This “highlights the challenge that the CRTC is facing when it attempts to enforce things on new types of services that are being offered and there are all kinds of new services that really blur the lines between which act should apply,” Mainville-Neeson added.
