The Spirit of the Law

It is a basic premise that the law should be clear so that people can know what is prohibited and what isn’t. This is as true of broadcasting regulation as any other area of the law. And yet, two recent examples suggest that the CRTC continues to struggle with this elementary principle. On November 17, 2001 the CRTC approved an application by Corus Entertainment Inc. to acquire control of Lifestyle Television, the licensee of the Women’s Television Network – Decision CRTC 2001-702. Less than one week later, Corus announced it is cutting 43 WTN jobs and moving WTN’s Winnipeg operations to Toronto. According to media reports, the CRTC is irate. The question is: why? In a letter sent to Corus on November 23, the CRTC asks Corus to explain how the announced changes at WTN are in accord with the benefits and commitments the CRTC approved in its November 17 decision. A review of Decision 2001-702 reveals a commitment by Corus to provide tangible benefits worth $20.5 million. None of these benefits require Corus to keep WTN in Winnipeg. Neither do they impose any restrictions on the internal management of WTN, including employment levels. On the contrary, the six items contained in the benefits package all promise funding to other institutions, organizations or programming funds. On its face, these commitments can all be satisfied whether or not Corus implements its announced changes at WTN. Decision 2001-702 does mention WTN’s connection to Western Canada. At paragraph 7, the CRTC notes an intervention by the Alberta Motion Picture Industry Association and then states: "The Commission encourages Corus to maintain and build on WTN’s orientation as a Western-based service." Full stop. This note of "encouragement" does not impose any obligation on Corus to keep WTN in Winnipeg. At best, it expresses a hope or preference that Corus do so. But that is all. So, why is the commission apparently so angry with Corus? The answer may lie in another recent decision by the commission. On November 7 the commission wrote to CTV in connection with changes to its local programming in Northern Ontario. After noting that the changes being introduced by CTV "are consistent with the requirements of the licence decision of the MCTV stations", the commission goes on to suggest that perhaps CTV should do more since it is a major broadcaster and part of the BCE family. The commission concludes by saying: "the Commission expects CTV to fulfil the spirit, as well as the letter, of its commitments ...". It appears that both CTV and Corus are expected to do more than obey the law. It is not sufficient that they comply with their conditions of licence and applicable regulations. They are expected to satisfy additional, amorphous requirements, which may or may not have been hinted at by the CRTC. They must go beyond their actual legal obligations and satisfy "the spirit" of the law. This sounds more like haunting than regulation. Broadcasting companies, like everyone else, have a right to know what their legal obligations are so that they can plan and carry out their operations in an efficient and effective manner. They should not have to worry about "expectations", "urgings" and "encouragements" which even the most astute legal counsel cannot translate into concrete legal obligations. It is time for the CRTC to rid itself of its attachment to vague forms of "moral suasion". In a competitive broadcasting market it is only reasonable to expect that industry players will take whatever steps they consider necessary to promote their businesses – provided they are legal. If the commission considers an issue important enough to warrant regulatory attention, it should impose a clear and unambiguous legal obligation on the licensee. And if a company complies with all of its legal obligations, it should not be chastised for making a business decision that it deems to be in its best interest. Fairness and regulatory efficiency require clear rules, and nothing more. Christopher Taylor is an Ottawa communications lawyer. He can be reached at cataylor@cyberus.ca.

The Spirit of the Law

Broadcast | December 6, 2001

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