Communications Law

Communications Law

Canadian communications law includes judicial decisions and statutes governing communications firms; however, the most important element of Canadian communications law comes from the decisions of the federal regulator, the CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION (CRTC), which regulates radio, television, broadcast distribution undertakings (cable, satellite and IPTV television services) and most telecommunication services, wireless services and Internet service providers (ISPs). Not all communications are subject to regulatory oversight in Canada. Newspapers are not subject to regulation, even when they employ audio-visual materials on their Internet websites. In a landmark 1999 decision, the CRTC determined that "the Commission will not regulate new media activities on the Internet under the Broadcasting Act" (CRTC Broadcasting Public Notice 1999-84). This decision to exempt online content from regulation was reviewed and upheld in 2009 (CRTC Broadcasting Regulatory Policy CRTC 2009-329).

History

Radio stations have been licensed in Canada since 1919, but comprehensive government involvement in broadcasting did not begin until the Canadian Radio Broadcasting Act in 1932. The movement to establish a national broadcasting system was championed by a small but effective lobby group called the Canadian Radio League (CRL), spearheaded by Graham SPRY and Alan Plaunt. The CRL was inspired by the 1929 report by the Aird Commission which recommended that Canada establish a single, national, publicly owned system (Canada, Royal Commission on Radio, 1929). In the Parliamentary hearings which preceded the 1932 Act, Graham Spry's testimony before the committee included the oft-quoted observation "The question is the State or the United States," a succinct summary of the lurking threat to Canadian culture of American media dominance.

In 1932 the British Privy Council awarded the federal government exclusive jurisdiction over broadcasting. Both the Canadian Radio Broadcasting Act and the Canadian Broadcasting Act (passed in 1936) permitted private broadcasting, but after 1936 the Canadian Radio Broadcasting Commission was disbanded and the CANADIAN BROADCASTING CORPORATION became both the national public broadcaster and the regulator of the private sector.

The CBC acted as broadcaster and regulator until the 1958 Broadcasting Act established a new regulatory agency for private stations, the Board of Broadcast Governors. The 1968 Broadcasting Act established the Canadian Radio and Television Commission as the new single regulator for public and private broadcasters.

The 1991 Broadcasting Act

The key legal document for Canadian communications is the Broadcasting Act of 1991, the first major revision to the Broadcasting Act since the previous Act was passed in 1968. The scope of the Act involves issues related to national culture and sovereignty and is administered by the Department of Canadian Heritage. The language of the 1991 Broadcasting Act is designed to be technologically neutral, so as not to become quickly dated in a period of rapid technological change. Broadcasting is defined in the 1991 Broadcasting Act as "any transmission of programs, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus, but does not include any such transmission of programs that is made solely for performance or display in a public place" (2)(1). Under this definition, cable, satellite and Internet Protocol distribution are regulated as broadcasting. (Telesat, the Canadian satellite company which leases space to television distributors, is governed by the Telesat Canada Reorganization and Divestiture Act of 1991.)

The Act is divided into four parts: Part One defines key terms and sets out the fundamental policy objectives for Canadian broadcasting; Part Two of the Act sets the powers of the CRTC; Part Three governs the powers and functions of the Canadian Broadcasting Corporation; and Part Four contains amendments to other statutes and the repeal of the previous Broadcasting Act. The Act officially recognizes the place of First Nations peoples and the changing ethnicity of Canada's population within the broadcasting system (3)(d)(iii).

The Broadcasting Act is not without its critics. Former CRTC chairman Konrad von Finckenstein (2007-12) repeatedly called for a merger of the Telecommunications and Broadcasting Acts into one new comprehensive piece of legislation. Other reviews over the last decade have been far more favourable in evaluating the continued relevance of the 1991 Act, including the 2003 Standing Committee of Canadian Heritage report Our Cultural Sovereignty; the 2006 CRTC report The Future Environment Facing the Canadian Broadcasting System; and the 2008 book The CRTC and Broadcasting Regulation in Canada by Liora Salter and Felix Odartey-Wellington.

The Federal Regulator

The decisions and policies of the CRTC form the basis for communications law in Canada. Though CRTC decisions can be appealed, very few actually are. The mandate and powers of the CRTC are broad. Not a word was changed regarding the scope of the CRTC in the Acts of 1968 and 1991: "the Commission shall regulate and supervise all aspects of the Canadian broadcasting system" (II)(5)(1). The CRTC was organized to replace the Board of Broadcast Governors, the regulator which had been in place since 1958. The BBG was seen as too weak to regulate a growing broadcasting industry which now included cable distribution, and it did not have the power to issue or revoke licenses. The inaugural chair of the CRTC, Pierre JUNEAU, was well-known in Ottawa, having served in the 1950s and 1960s with the National Film Board of Canada.

The Canadian Radio and Television Commission became the Canadian Radio-Television and Telecommunications Commission in 1976, placing the supervision of federally-regulated telephone and telegraph companies under CRTC control (Saskatchewan Telecommunications - SaskTel - is a provincial Crown Corporation which operates under the authority of the Saskatchewan Telecommunications Act. Some provinces are active in educational broadcasting, although they still must also be licensed by the CRTC). Until the Canadian Radio-Television and Telecommunications Act, telephony was supervised by the Telecommunication Committee of the Canadian Transport Commission under the Railway Act, the Telegraphs Act and the National Transportation Act. These three statutes were merged into the Telecommunications Act in 1993. The CRTC's jurisdiction is governed by two federal statutes: the 1991 Broadcasting Act and the 1993 Telecommunications Act. As such, the regulator answers to both the Department of Canadian Heritage and Industry Canada.

The CRTC is an arm's-length institution. There are in essence two key reasons for the CRTC's required independence: regulation requires a high degree of expertise, continuity and stability, which traditional government departments cannot provide, and insulation of regulatory procedures such as license granting from the political process is required in order to ensure impartiality.

There are legal differences between the policy and regulation announcements of the CRTC. In the 1991 Act the CRTC was granted regulatory authority in section five after the policy objectives of the Canadian system were clearly specified in section three. The regulations of the CRTC are legally binding; however, the CRTC also has within its legal mandate under the 1991 Broadcasting Act authority to ...issue guidelines and statements with respect to any matter within its jurisdiction under this Act, but no such guidelines or statements issued by the Commission are binding on the Commission (section 6).

These policy announcements are not legally binding on the Commission or industry, neither can they be appealed to, or overturned by, the federal Cabinet, unlike licensing decisions as specified in section 34(4) of the Broadcasting Act. They alert the industry with regards to how the regulator sees the system evolving.

The use of industry self-regulation and co-regulation for matters of broadcasting content is consistent with the regulatory arch of the CRTC in the period following the 1991 Broadcasting Act. The CRTC has encouraged industry associations to develop, in consultation with their members and the Commission, codes of conduct and standards pertaining to broadcasting governance. Examples include the Canadian Association of Broadcasters (CAB) Voluntary Code Regarding Violence in Television Programming, CAB Sex Role Portrayal Code for Television and Radio Programming, Advertising Standards Canada General Portrayal Guidelines for Advertising, CAB Broadcast Code for Advertising to Children, and the Code for Broadcast Advertising of Alcoholic Beverages.

In Canada, broadcasters are subject to conditions of licence that require licensees to comply with specific industry codes. These conditions of licence are suspended if the licensee agrees to join, and abide by the decisions of the self-governing broadcasting organization, the Canadian Broadcasting Standards Council (CSBC). If a Canadian viewer has a complaint with content regarding a Canadian broadcaster, the complaint is first assessed by the CBSC; if the viewer is still not satisfied, they may take their objection to the CRTC.

The public may be notified of applications under consideration and of policies or new regulations via the CRTC website, the Canada Gazette, and often in local newspapers or broadcasts. Public hearings may be scheduled on the merits of a policy or applications. Members of the public are invited to intervene, to submit comments in writing and possibly discuss them at a CRTC hearing. The CRTC publishes all its decisions, which are usually final; however, decisions can be appealed to the courts or to the federal Cabinet. The courts have generally been reluctant to second guess the CRTC; however the federal Cabinet can issue policy directives to the CRTC or request a re-examination of any CRTC decision. The CRTC is obligated to follow a Cabinet direction.

The divide between government and regulator remains contested terrain. The CRTC is an independent regulator but the federal Cabinet may issue broad policy directions to the CRTC. There have been seven such directions issued to the CRTC. The Conservative government of Stephen Harper has directed the CRTC in the jurisdiction of telecommunications. In 2006 Industry Minister Maxime Bernier released the Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives which required the CRTC to rely increasingly on market forces:

In creating the Policy Direction, the Government is signalling its vision for the future of telecommunications policy in advance of more substantial regulatory change by providing policy guidance on how the Commission should exercise its regulatory mandate and direct it to take a more market-based approach to implementing the Act.

Other Federal Statutes Affecting Canadian Communications:

The Telecommunications Act came into force in 1993 and is also administered by the Department of Industry. The objectives of the Telecommunications Act are to ensure "a telecommunications system that serves to safeguard, enrich and strengthen the social and economic fabric of Canada and its regions" (7)(a). This Act does not have the same cultural emphasis as found in the Broadcasting Act; however, it clearly states that telecommunications providers must be Canadian-owned and controlled (7)(d).

The Radiocommunication Act is administered by the Department of Industry and governs the licensing and regulation of radio equipment and the technical certification of broadcasting undertakings in Canada. No person is allowed to install, operate, or possess radio apparatus except with a license or authorization by the Minister of Industry. In an effort to curb satellite piracy, in 1991 a provision was added prohibiting the unauthorized decoding of encrypted signals.

(See alsoCOMMUNICATIONS, TELEVISION, NEWSPAPERS and BROADCASTING, RADIO TELEVISION).