Experts say merging telecom and broadcasting acts ‘not worth the effort’

Experts say CRTC chairman Konrad von Finckenstein’s calls for a merger of the telecom and broadcasting acts may not be worth the effort. “I’m not really sure that the act of putting two bills into one really achieves a great deal,” Hank Intven, a lawyer and telecommunications expert with McCarthy Tétrault in Toronto, said in an interview. Intven said the content side of regulation, under the Broadcasting Act, and the carriage side, under the Telecommunications Act, remain distinct. Even if Canada merged the two acts, they would probably have to be dealt with in separate parts of the same statute. The comments come as von Finckenstein has repeated calls for a converged statute covering telecommunications and broadcasting. At a speech at last Friday’s New Developments in Communications Law and Policy conference in Ottawa, hosted by the Law Society of Upper Canada, von Finckenstein reiterated the need for a converged act. “It no longer makes sense to apply different rules to a converged company’s telecom and broadcasting activities,” von Finckenstein said. “We need to break down these legislative distinctions, which are becoming increasingly artificial, and develop a comprehensive approach to communications.” Intven said the United States and the United Kingdom have adopted converged legislation, but both jurisdictions addressed carriage and media content in separate parts. Sheridan Scott, a partner with Bennett Jones LLP in Ottawa and former head of the Competition Bureau, wrote by email to The Wire Report that previous discussions about merging the legislation have acknowledged the distinction between content and carriage. “Creating a single act would simply mean that there was a ‘Part A’ and a ‘Part B’, and it was hard to see the value in that,” she wrote. Canada’s telecommunications or “carriage” objectives essentially state that Canadians get access to affordable, high-quality telecommunications networks providing services like telephone, Internet, television, and radio. The broadcasting or “content” objectives say that Canadians should have access to Canadian programming as viewers and producers. In today’s converged world of communications, it may make more sense to rename the Telecommunications Act the “Carriage Act,” and the Broadcasting Act the “Content Act.” It took six years, between 1987 and 1993, to consolidate, modernize, and pass the existing Telecommunications Act. Merging the telecom and broadcasting acts would be a massive undertaking, involving years of consultation with a large array of stakeholders with divergent views. It’s not likely a project any federal government wants to take on—let alone in a minority Parliament. Nor is it the first time Canadian leaders have discussed merging telecom and broadcasting legislation. When the CRTC was created in 1968 to regulate the Canadian broadcasting industry, telecommunications was still regulated under the Railway Act. But as an era of satellite and digital communications dawned, experts recognized a convergence between telecommunications and broadcasting policy. On March 22, 1977, Jeanne Sauvé, then the minister of communications under prime minister Pierre Trudeau, introduced Bill C-43, the Telecommunications Act. The bill proposed merging telecom and broadcasting regulations, replacing the existing Broadcasting Act, the CRTC Act, the Radio Act and Telegraphs Act with a single statute. But Bill C-43, which had separate parts for telecommunications policy and regulations covering broadcasting undertakings, did not proceed beyond first reading before Parliament dissolved for the 1979 election. In his newly released book, Communications Law and the Courts in Canada, McCarthy Tétrault counsel Peter Grant writes that the Telecommunications Act and the Broadcasting Act “have turned out to be remarkably robust,” and that the Broadcasting Act continues to cover the analog and digital communication of content. “The goals of the Broadcasting Act continue to be relevant in the digital age, and the CRTC has a panoply of powers to help Canadian content production without infringing freedom of expression,” Grant writes. Grant says the CRTC can still influence programming through licence conditions, scheduling and expenditure requirements, terms of trade between broadcasters and independent producers, and decisions on signal carriage. It’s also possible that content regulations under the Broadcasting Act could apply to new media online. The CRTC’s authority on the matter is currently before the Federal Court of Appeal. Consolidation and vertical integration among the big industry players do not necessitate a new, converged act, Grant notes. “Some have argued that it is time for converged legislation to deal with this. I am not convinced that this would be worth the effort,” he writes. In 2006, the Telecommunications Policy Review Panel said the convergence of telecommunications and broadcasting markets called into question the viability of separate policy and regulatory frameworks for telecommunications common carriers and “their competitors in most of the same markets, the cable telecommunications companies.” Similarly, the 2008 Competition Policy Review Panel report, chaired by Lynton (Red) Wilson, noted how communications technologies had changed the landscape, and that it is increasingly difficult “to define distinct ‘telecommunications’ and ‘broadcasting’ industries or sectors, particularly when it comes to delivery or distribution networks.” In an appearance before the House industry committee on April 13, von Finckenstein said the CRTC has been doing what it can to deal with convergence. The commission has created a policy development and research branch, bringing together broadcasting and telecom activities, he said. The CRTC also conducts joint telecommunications and broadcasting hearings when possible. “But the legislative and regulatory structure we administer still preserves the old distinctions of broadcasting and telecommunications, in other words, the distinctions between content and carriage,” he said. “For Canada to remain a leader in a converged world, we need to abandon these artificial and outdated concepts.” Intven said a distinction should be made between regulatory reform and merging the telecom and broadcasting acts—and that updating the Broadcasting Act would be a simpler feat than converging the two statutes. At last Friday’s conference, Scott and David Elder, barrister and solicitor at Elder Communications and Privacy Law, presented a paper titled, “The Matter of Local Television: Conventional Broadcasting at the Crossroads,” which proposed a review of four areas of the CRTC’s regulatory framework: setting broadcasting standards for accuracy and balance in the news; the CRTC’s relationship with the CBC and the “inherent tension” between them; introducing taxing powers to fund Canadian content; and the role of the regulator in copyright. The Conservative government has also pledged to amend the Telecommunications Act to open the door to foreign investment in Canada’s telecom sector. In another regulatory question, Intven alluded to a recommendation of the Telecom Policy Review Panel—one supported by von Finckenstein—that said Industry Canada should transfer its spectrum management powers to the CRTC. “Canada is one of the very few countries in the world that still sees spectrum licenses issued by a political ministry,” Intven said, noting that, among OECD countries, only about five jurisdictions manage spectrum within a government ministry. “It could reduce some of the inconsistencies we’ve seen in recent years between the two regulators." Last year, the federal government overturned a CRTC decision that had denied Globalive Wireless Management Corp. entry into the Canadian market due to foreign ownership restrictions. Industry Canada had previously awarded the company spectrum in Canada. Industry Minister Tony Clement told Cartt.ca this week that spectrum management powers should remain with the government because of the public policy and revenue issues associated with auctioning spectrum licences. sdoyle@thewirereport.ca

Experts say merging telecom and broadcasting acts ‘not worth the effort’

Broadcast | April 29, 2010

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