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).

The immediate problem here, as elsewhere in s.3, is this is mere “encouragement,” not a binding requirement, as reflected in the difference between the lawyer’s “shall” modal verb and the garden-variety “should.” It’s all very well for Parliament to say, let’s help aboriginal broadcasting. But it’s then left to the discretion of other branches of government to decide whether to make adequate resources available.

The branch most concerned with aboriginal broadcasting is the CRTC. Yet, in keeping with other socio-cultural issues that are conspicuous by their absence, the CRTC’s 2014 Communications Monitoring Report (CMR) mentions aboriginal broadcasting only four times in its 320 pages – none of which covers anything more substantive than the number of stations operating in Canada in a given period. The CMR doesn’t suggest anywhere that aboriginal broadcasting has suffered some form of market failure – perhaps because the Commission is always very reluctant to point to market failures in its research documents.

(I note in passing that the 2014 CMR makes only one mention of the “public interest,” on p.61, and that’s confined to the matter of tangible benefits, the “tax” the Commission levies on all non-competitive changes of ownership. It says these benefits “are incremental to the normal costs of doing business and, as with the transaction as a whole, they are in the public interest.” I’d call that debatable, since those monies circulate within the industry primarily as a boost to the production community. What tangible benefits do the rest of us enjoy?)

One of my fellow panelists on Friday will be Dr Larry Chartrand, a leading expert on aboriginal law and the social issues surrounding it. I asked Larry in an email last week what he thought the implications were of the difficulties facing aboriginal broadcasting at the moment. He agreed, first of all, that there is a “performance” issue he sees tied to a wider problem:

“I think part of the issue is that Indigenous broadcasting is seen as only relevant to serving Indigenous communities and not mainstream communities. Indigenous specific broadcasting should be seen as relevant to all Canadians and broader exposure of Indigenous communications should be strongly encouraged.”

Larry has promised to elaborate on this point during the panel discussion, which I hope will include some indication of who should bear the responsibility for this kind of support. Larry indicates that much bigger issues, constitutional issues, are at stake here. That suggests to me not that aboriginal broadcasting isn’t important enough for section 3. On the contrary, my sense is that it’s way too important to be buried in a piece of legislation built on what can be described as token gestures.

The Act uses the “available resources” language in several other parts of section 3 – most notably in connection with the CBC, in s.3(1)(m)(vii):

“the programming provided by the Corporation should be made available throughout Canada by the most appropriate and efficient means and as resources become available for the purpose…” (my emphasis).

Since 1991, more ink may have been spilt in this country over CBC’s financial resources than over any other cultural issue. The debate has raged over having more or no commercials; a promise of five-year, fixed funding cycles; access to certain production subsidies; rates for specialty services; and a host of others. In the face of all that sound and fury, is this sub-section a legitimate piece of public policy? If it ever was, it’s hard to see what application it may have in this century.

Meanwhile, the radio proceeding just launched by the CRTC will examine the failure of several licensees to comply with provisions of the 1986 Radio Regulations. The first licensee to be heard, on May 13, was Aboriginal Voices Radio (AVR). The transcript for that day lists the following agenda items:

“[AVR’s] apparent non-compliance, the funding of its stations, the viability of its business plan and its capacity to provide quality service to the Aboriginal community in its current markets, including local newscasts and spoken word programming” (para 7).

This list strikes me as a tall order, especially given that the Commission, which is threatening to sanction AVR, is in no position to alleviate the “available resources” issue lurking in the background. I hope we can shed some light on these issues at the conference Friday.

D.E.