How serious is the CRTC’s ‘unprecedented’ lack of commissioners?

At the end of this week, following the departure of its vice-chairman of telecom, the CRTC will be left operating with only four commissioners and an interim chairwoman with four-month mandate. It’s a rare situation, and there are differing opinions among former commissioners about how seriously it will affect the functioning and effectiveness of Canada’s telecom and broadcasting regulator. “Surely, it’s unusual, and more than likely, the first time it happened,” former vice-chairman and interim chair Michel Arpin said in a phone interview. The CRTC can have up to 13 full-time commissioners, though a full slate isn’t necessarily ideal, previous appointees have said in the past. In an email Monday, CRTC spokeswoman Patricia Valladao said that “it is business as usual at the CRTC,” and that “we continue to work on behalf of Canadians, as we have always done.” Andrew Cardozo, a former two-term CRTC commissioner, noted in a phone interview there’s always been a “healthy overlap” between vice-chairs and chairs, so that the vice-chair can bring the incoming chair up to speed and vice-versa. “There’s never been a situation” where all of those spots are empty, he said. Once Peter Menzies leaves, the regulator will be short both vice-chairs of telecom and broadcasting, as well as a permanent chair. Overall, “it’s a pretty tenuous situation at the moment,” Cardozo said. He added that during the time he was at the CRTC, there was a low of about seven or eight commissioners, “and it got pretty hairy at times. So certainly, they’ve got to slow down their business when they’re at this level.” Former CRTC commissioner Tim Denton said a phone interview that the empty spots will become a more significant issue over time, but that before he left last month, former chairman Jean-Pierre Blais’ “in-basket was cleared out.” A few months’ delay won’t be harmful, especially because the summer is normally a slower time for the commission, he said, but how long it can continue like that depends on what events occur and issues emerge in the future. “Things can continue on autopilot for quite a while, but then stuff happens where decisions are really needed,” Denton said. “If this carries on till Christmas, we may have issues.” Cardozo agreed that because it’s summertime, the problem likely isn’t as serious as it would be otherwise. Still, he noted that it takes time for new commissioners to get up to speed when they start and in an ideal world, they should be given at least three months to do so. “Just as it is, if you appointed a bunch of people at the end of the summer, I think it would still take a few weeks for them” to get briefed on how the commission operates and the issues. There is currently only one (non-appearing) hearing scheduled for the rest of the year, to consider broadcast licence applications on Sept 7. When it comes to a public hearing, commissioners and staff have to put in the time beforehand to understand the issues and to be able to engage in discussions with those who are appearing, he said. “You want to be able to ask them some good strong questions and have a dialogue. There were times that we were down to seven that it was pretty hard to do that.” More commissioners also means you’re more likely to have individuals who have an in-depth understanding of technical issues, and to ensure there is diversity at the top of the regulator, Cardozo added. “When you have a small commission, you tend to have a less diverse commission,” he said, noting a historic lack of representation of Indigenous peoples and visible minorities. Advocacy groups and others have called for all 13 spots to be filled in order to address those gaps. Arpin noted a small commission can also cause representation problems when it comes to language, something that’s already been an issue when a French-language hearing had to be postponed. Currently, the commission is in a “holding pattern,” Cardozo said. Part of the reason for that is the fact that the regulator is headed by acting chairwoman Judith LaRocque, whose four-month term is scheduled to end in October. Cardozo said that LaRocque is “very competent in that role, but because she’s temporary, she really has to be… a placeholder. She can’t have a mandate other than just keep the place running.” An interim chair is “there to hold the fort and pursue existing policy,” Arpin concurred. Cardozo said in a follow-up message that during that time, the CRTC is likely to deal with administrative decisions, as opposed to those that create new precedents. “The commission put out about 2,000 decisions a year, and I would say about 1,000 of those are fairly administrative,” he noted. If there are urgent issues, such as acquisitions or sales, and if they won’t set too much of a precedent, the regulator could also go ahead with those, he predicted. “Other than that, the commission has no choice but to allow a certain amount of backlog to develop, and in my view it’s better to the backlog than to make the decision in a fast and dirty way with a very small commission,” Cardozo said. Arpin said the low number of commissioners doesn’t necessarily mean the CRTC can’t function, noting its bylaws specify at least three members are needed to make a decision, while the CRTC Act says quorum in a meeting is achieved with half the number of commissioners, plus one. That means a full commission meeting could happen with three out of the five commissioners. Arpin added that the commissioners can also grant staff more power if needed, “but I don’t think there is a need. I think the commission has all the powers to function properly.” Still, he criticized the government’s slowness to name replacements. “I am a bit disappointed by the attitude of the government, because they are delaying appointments not only at the CRTC, but we know they are short of members of the board” of CBC/Radio-Canada and in other cases. “They take ages before making a decision. They’ve been elected to make decisions, not to consult.” He said that in the past, governments have been quicker to name commissioners, noting that “personally, I was appointed in May of 2005 to take office at the end of August.” Heritage Minister Mélanie Joly’s office did not respond to a request for comment Monday. Former CRTC commissioner Michel Morin said in a phone interview that the CRTC faces an “unprecedented situation.” “I don’t understand why the federal government has been waiting for more than 20 months now to replace the vice-chair of broadcasting,” since the departure of Tom Pentefountas in 2015, he added. Morin said that there have been individuals who have been interested in the jobs for months and haven’t heard back at all, which he noted is part of a wider problem of a large number of positions that haven’t been filled by the Liberal government. “It seems that there is no government in Ottawa as far as the CRTC is concerned,” Morin said. — With reporting by Anja Karadeglija at akarad@thewirereport.ca and reporting and editing by Charelle Evelyn at cevelyn@thewirereport.ca

How serious is the CRTC’s ‘unprecedented’ lack of commissioners?

Broadcast | July 10, 2017

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How serious is the CRTC’s ‘unprecedented’ lack of commissioners?

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