Opinion: The CRTC’s expertise may not be as expert as we think

Last Tuesday, those attending a Federal Court of Appeal hearing in Ottawa—to consider whether Internet service providers are broadcasters—laughed somewhat nervously when Justice Marc Noël asked whether the court has become Canada’s broadcasting expert in place of the CRTC. According to The Wire Report, Justice Noël said, “It would have been useful if had expressed , because they are the experts. I’m a little troubled by that. Have we become the experts? That’s what the CRTC is there for.” In fact, the idea that tribunals such as the CRTC have specialized expertise, to which courts must defer, is a fundamental principle of administrative law. On CBC Radio’s Sunday Edition on May 16, host Michael Enright told Canadians he remembered “talking to a former chair of the CRTC who said … that when the cable companies or the phone companies come before the … CRTC, all of the expertise that they have, that exists, is with the company, with the person making the application. The CRTC itself did not have sophisticated technical knowledge, or enough of it, to rebut the arguments put forward by the industry.” If the industry players are more expert than CRTC staff, Canadians should be concerned. For one thing, why should the CRTC rely on broadcasters and telephone companies when it has the legal power to obtain virtually any information it wants from its licensees and employs several hundred staff, many of whom worked in the industries it regulates? Apart from undertaking research about anything within its jurisdiction, the commission can also hold public hearings about policy or licensing issues. In theory—and in law—the CRTC should have everything it needs to be independently expert in its own right. Even if the CRTC relied on industry expertise more than we know, it might not be a problem if Canadians could at least assess that expertise themselves to help challenge CRTC actions. But too often the CRTC’s claims of openness, transparency and accountability are empty. In broadcasting hearings, only the CRTC can ask broadcasters questions, having denied other parties a cross-examination mechanism, decades ago, on the grounds that it can and will act on the public’s behalf. Just last year, the CRTC closed the doors on a public hearing into private broadcasters’ licence renewals, asking questions about broadcasters’ plans in complete privacy. More recently, following the CRTC’s announcement of a rare review of the community television policy framework, a community television group used formal access-to-information requests to make the CRTC disclose audits it had conducted about cable companies’ community television channels. Without those requests, who else besides the companies would know that the CRTC believed the companies were failing to meet its community television obligations? Last March, when the CRTC decided to cut over-the-air private television stations’ Canadian content levels from 60 per cent to 55 per cent to give broadcasters yet more flexibility, it offered no explanation about how this would benefit broadcasters, the broadcasting system, or Canadians themselves. Perhaps the CRTC doesn’t know. If the CRTC is not as expert as we hope it is, what should be done? Simply describing its staff as expert, as CRTC Chairman Konrad von Finckenstein did the day after Justice Noël made his comments, is not enough. The most frequently touted suggestion—eliminating the CRTC altogether in the belief that in a digital era it is as useful as a horse-and-buggy whip—ignores the fact that the spectrum used to transmit telecommunications and broadcasting signals is a limited public good. Without the CRTC, the government would have to assign broadcasting licences. Having an arms-length, independent agency in charge of licensing is a sensible way to avoid suggestions of political favouritism. What’s not a good idea is to let this important agency operate behind closed doors, without accountability, and without clear direction from Parliament. Why, for example, doesn’t the Broadcasting Act specifically require the CRTC to put Canadians’ interests first? Why does it not require the CRTC to explain its actions? Why can’t its policies be challenged? Until Parliament turns its mind to these questions, Canadians need to know more about the CRTC and its impact on Canada’s cultural industries. This is why my company has established five new awards for original, empirically oriented research on Canada’s communications industry by university undergraduate and graduate students. The Frenken Awards honour Joseph (Sjef) Frenken, a central figure in the development of Canadian broadcasting policy, who consistently supported and encouraged quantitative foundations for Canadian broadcasting policy while he was a staff member at the CRTC. The awards will be granted in October to five researchers who have undertaken original quantitative research about Canadian communications from general, legal, economic, journalistic, or new media perspectives. Canada needs new ideas and research about our cultural industries. We look forward to seeing what Canadian students—experts in the making—will tell us. Beverley Milligan is president and CEO of Mediac Inc. and acting president and CEO of the new non-profit organization Media Access Canada. news@thewirereport.ca

Opinion: The CRTC’s expertise may not be as expert as we think

Broadcast | June 9, 2010

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