Oh what a tangled web: Bell vs the Internet at Federal Court

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Bell Mobility’s legal team conferred on a break

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On Tuesday, January 19, the Federal Court of Appeal heard oral arguments from several parties about Bell’s Mobile TV service and whether it had violated Canadian law. In attendance were 13 lawyers, not counting the panel on the bench, which made it 16 lawyers, just shy of the spectator count in the gallery.

The spectators included several staunch advocates for the open Internet (Ben, Reza, JF, Laura, Cynthia, me), not to mention our tireless legal counsel, Philip Palmer, who agreed to represent a ragtag bunch he barely knew.  Continue reading

Rebooting basic telecom services: hope for policy reform?

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The recent Rebooting conference in Ottawa was a terrific experience. Lots of people with lots of good ideas and the opportunity to debate them at length.

cbc_logo_1940_1958Oversimplifying a little, I would divide the conference participants into two general groups. The first and larger of the two was reform-minded, with many calling for serious changes, especially to the CRTC. The second group, while smaller, was just as eloquent in defending what I’d call the status quo. By that I mean maintaining or expanding subsidies for program production; a bigger role for the CBC; and measures explicitly designed to protect broadcasters with a view, among other things, to protecting jobs in the broadcast sector. This perspective tended to cast the socio-cultural objectives of the Broadcasting Act in a favorable light.

My six minutes of fame featured a half dozen reasons as to why there’s an urgent need to reboot the Broadcasting Act, and in particular to redraw the policy goals in section 3 from the ground up.

Why we need reform

1 – The 1991 Act is older than the Web. One simple argument for reform is chronological. The 1991 Act predates the Web by six months: the first publicly available Web page was posted on the Internet in August 1991. Worse still, most of section 3 is based on what became law in 1968 – 47 years ago! The main difference is that the current version is over three times longer and now refers to “programs” and “programming” 31 times. Continue reading

Rebooting our communications laws: aboriginal broadcasting

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From APTN homepage

In a post last week, I described the conference taking place this Friday and Saturday in Ottawa dubbed Rebooting our communications legislation. I’ve had a chance since then to talk to several other participants and one message emerges clearly: watch out, Ottawa, the legislation is going to get a kick in the ass. 

I zeroed in on a couple of issues that I find are especially telling signs of the need for change. I’ll stick with one right now: the would-be protection for aboriginal broadcasting in section 3 of the Broadcasting Act

radio-crtc-aboriginal-vs-commercial-1The chart above was sent to our panel by Monica Auer. As she notes, section 3(1)(o) sets out a provision explicitly intended to promote aboriginal broadcasting:

“… programming that reflects the aboriginal cultures of Canada should be provided within the Canadian broadcasting system as resources become available for the purpose” (my emphasis).

Continue reading

Canada’s outmoded communications laws: a 21st-century reality check

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Next week, a group of conferees (including me) will meet in Ottawa to discuss an important and difficult question: Is it time to overhaul Canada’s communications legislation? Two bedrock pieces of legislation are at issue: the Broadcasting Act of 1991 and the Telecommunications Act of 1993. The two-day event has been organized by the Forum on Research and Policy in Communications (FRPC), through the efforts of Monica Auer and Sharon Jeannotte. They’ve headlined it Rebooting Canada’s Communications Legislation.

Monica and Sharon have done something very unusual in planning this confab. They’ve sent out lengthy, detailed instructions to all the participants to manage everyone’s expections – on the substantive issues, not food allergies and room rates. (On the strength of this attention to quality alone, I’d recommend Rebooting highly.)

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tv-flag-4Canadian families spend an average of roughly $200 a month on communications services, a figure that keeps rising. Our federal and provincial governments are also heavy spenders in this sector, across a range of programs that include cultural agencies (e.g. CBC, Telefilm); direct subsidies (e.g. the Canada Media Fund); indirect subsidies (e.g. tax credits); and other periodic expenditures (e.g. broadband infrastructure). The money certainly matters. But Canadians also invest a great deal of time, faith and social equity in our broadcast media, especially television, as well as the telecom networks that power our smartphones and home Internet access.

Behind all the hours we spend with electronic media, there’s an overarching set of policy goals enshrined in our broadcasting and telecom legislation. The Rebooting conference is designed to examine those goals with a critical eye, in light of new developments on the ground, as the journalists say. The panel I’m on is called “Window to the world, mirror for ourselves: socio‐cultural objectives of communications legislation.” The organizers are particularly interested in hearing from us whether these objectives are still relevant. The initial puzzle, of course, is relevant to what? Beyond that, another difficulty looms.

The objectives of the Broadcasting Act in particular are deeply woven through regulatory policymaking, forming what the legislation calls the Broadcasting Policy for Canada. It stipulates that the broadcasting system should, for example, “serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada.” Among many other things, the system should also:

“serve the needs and interests, and reflect the circumstances and aspirations, of Canadian men, women and children, including equal rights, the linguistic duality and multicultural and multiracial nature of Canadian society and the special place of aboriginal peoples within that society…” [emphasis added: see below].

And so on, for a grand total of 1,100 words.

I’m not giving much away if I say here I find that the section 3 objectives are not merely unrealistic and unworkable, but have militated against the public interest by promoting the success of a small number of firms and industry personnel at the expense of consumer welfare. I base this bold claim on the possibly unconvincing observation that I’ve had a long-time interest in how the objectives for broadcasting fit the realities of audience, marketplace and political behavior. By way of illustration, I once wrote the following to sum up my opinion on the merits of section 3:

“Little can be gained from debating whether certain objectives of the system and the national service [read: CBC] are appropriate, when many technical and cultural realities of the system and the national service are simply not addressed by the major institutional provisions of the Broadcasting Act.”

Not to say I told you so, but I wrote this passage in the summer of 1978. I’d been asked by the late, lamented Dept of Communications to write a potted history of the first few decades of our system. What emerged a year later (1979) was a publication entitled Evolution of the Canadian Broadcasting System: Objectives and Realities, 1928-1968. Even in those days, the then Broadcasting Act, dating from 1968, had a section 3, devoted to the Broadcasting Policy for Canada. The tenor hasn’t changed much since, except it’s become much longer – almost four times longer.

That means our current policy framework is almost a quarter-century old, measured against the current statute. But if we measure from the real starting point, the 1968 version, the policy is 47 years old. Consider that the 1991 Act came into force a few months before the very first Web page became available on the public Internet (February 1991 vs August 1991: contrary to widespread belief, the Web and the Internet are two entirely different animals).

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The special legislative place accorded aboriginals is not reflected in available resources

SOME problems with the goals are intrinsic, like provisions without substance or import. The illustration I’ll discuss in a later post concerns the identification of “the special place of aboriginal peoples” in Canadian society and Ottawa’s failure to give that special place any practical meaning (see chart above). Many other problems arise from a disconnect between objectives and the changing realities of the marketplace. To illustrate that idea, I’ll look at the predicament of conventional broadcasters, whose audiences and revenues are fleeing, while the legislation and regulations still enshrine TV as the cornerstone of our culture (see chart below).

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D.E.