Historical and Constitutional Framework

• Author: Robert G. Howell
• Profession: Professor. Faculty of Law University of Victoria British Columbia
• Pages: 1-46

1

CHAPTER 1

HISTORICAL AND

CONSTITUTIONAL

FRA M EWOR K

A. THE SCOPE OF TELECOMMUNICATIONS

L AW

Historically, telecommunications law in Canada was exclusively within

administrative law. A body of rulings from the Canadian Radio-tele-

vision and Telecommunications Commission (CRTC), accompanied by

judicial determinations by way of appeal, review, or enforcement, pro-

vided the applicable jurisprudence. It built on a substantial history of a

regulated industry. The 1980s, however, brought the beginning of pol-

itical and economic change. By the 1990s, these changes were a f‌lood,

swollen beyond anything imaginable by the technological revolution of

digitization and the medium of the Internet in particular. The theme

of media convergence that had initially focused on the operational and

business convergence of telephone systems with formerly telegraph and

cable television communication expanded through digitization and the

Internet to one of a multimedia visual and aural expression, converted

to electronic “bits” and communicated as such.

A medium so international, decentralized, and almost universally

accessible as the Internet is, practically speaking, beyond the scope

of effective regulation, at least as traditionally contemplated. Indeed,

cyberspace, the so-called world of Internet communications,1 was in-

itially characterized as a separate and distinct (virtual) locale beyond

1 William Gib son, Neuromancer (London: Gollancz, 1985).

TELECOMMUNICATIONS LAW

2

the scope of regulation.2 Yet cyberspace is a creation of, and is used

and inhabited by, humankind in real societies and is, therefore, subject

to the legal and governmental structures applicable in those societies.

While certainly extraterritorial, cyberspace is not extraterrestrial. The

extent of its pervasiveness is such that all areas of law are potential-

ly applicable to its application if real society is to participate in the

medium while also being protected from adverse consequences that

would otherwise disrupt society.3

Despite theoretical and practical diff‌iculties in application, legal

concepts and principles have effectively adapted to new situations in

many contexts and will undoubtedly move to encompass current and

future technology and media of communication appropriately. This

may be by way of direct application of existing law and policy or by

creation of new infrastructure such as the dispute resolution mechan-

ism for Internet domain names.

Further diff‌iculties may be posed for the jurist. Is there still, or

should there be, a subject area identif‌ied as telecommunications law?

If so, what might it comprise? Should issues of telecommunications

be simply subcategorized and allocated to existing substantive topics

in the legal curriculum? At this point in a rapidly changing industry,

suff‌icient core areas of law and policy relevant to telecommunications

in itself still exist that justify a separately designated area of law. This

core is represented by the statutory and regulatory framework of point-

to-mass, broadcasting, and point-to-point communications, ref‌lected

in a legislative ordering as recent as 1991 and 1993. This framework

will continue for the immediate future, notwithstanding that even at

the time of enactment, the legislation presented a structure challenged

by the Internet and other technological innovation encompassing both

individual and mass communication. A new legislative and administra-

tive framework may be needed to ref‌lect the signif‌icant and ongoing

changes that the industry now ref‌lects. This is contemplated, but diver-

gent political perspectives, well demonstrated in 2003 in reports from

respective standing committees of the House of Commons concerning

2 See, for example, t he series of essays on th is theme in B. Kahin & C. Ne sson,

ed., Borders in Cyberspace, Har vard Information Infra structure Project (Cam-

bridge, MA: MIT Pr ess, 1997). Note also P ublic Notice CRTC 1999-197, Ottawa,

17 December 1999, in which even the Ca nadian Radio-telev ision and Telecom-

munications Com mission (CRTC) withheld, for the time bein g, any attempt to

regulate Inter net-related communications.

3 Michel Racicot et al., The Cyberspace I s Not a ‘No Law Land’: A Study of the Issues

of Liability for Content Circulat ing on the Internet (Ottawa: Industr y Canada,

1997), online: archive.if‌la.org /documents/infopol /canada/icrls.pdf.

Historica l and Constitutional Frame work3

telecommunications4 and broadcasting5 suggest that the exercise will

be contentious, despite the gathering momentum for change as detailed

in the introduction to Chapter 2.

In the meantime, the categorization of broadcasting and non-broad-

casting remains as a functional foundation but is weathered not only by

the process of deregulation but also by the inclusion within telecom-

munications law of other areas not formerly contemplated as central or

even relevant to the topic. These include elements of competition law,

intellectual property law, privacy law, and private international law.

They are crucial inclusions to any holistic treatment of “telecommuni-

cations law” in today’s environment.

A refocusing on aspects of constitutional law is also necessary.

While constitutional jurisdiction was relatively clear with respect to

the traditional media of telephone, television, cable, and satellite dis-

tributions, the constitutional dimensions applicable to the Internet and

related areas are much less certain. The communications revolution

from 1930s through the 1970s of radio, television, and cable provided

the technological framework for both the constitutional determina-

tions and the governmental and regulatory measures that have served

the industry to the present. Ironically, the political dimensions of this

period ref‌lect the same political polarity that is demonstrated in the

two parliamentary reports in 2003 and that will shape the future polit-

ical debate over the restructuring of the constitutional and legal infra-

structure to take account of the current revolution f‌lowing from digital

technology in a global environment. This, indeed, is the one constant

dimension.

4 House of Commons, St anding Committee on Indust ry, Science and Technology,

Opening Canadi an Communications to the World (April 2003), online: Parlia men-

tary Inte rnet Parlementaire http://cmte.parl.gc.ca /Content/HOC/committe e/372/

inst/reports/rp1032302/instrp03/instrp03-e.pdf. See also Mini ster of Industry,

Governmen t Responds to Industry Com mittee’s Recommendations on Foreign Invest-

ment Restri ctions in Telecommunications (25 September 2003), online: www.ic.gc.

ca/eic/site/ic1.nsf/eng/02475.html.

5 House of Commons, St anding Committee on Cana dian Heritage, Our Cultural

Sovereignty: The Second Cent ury of Canadian Broadcast ing (June 2003), online:

www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=1032284&Langu

age=E&Mode=1&Parl=37&Ses=2&File =5. See also M inister of Canadia n Herit-

age, The Governme nt of Canada’s Response to the Re port of the Standing Committee

on Canadian Her itage, Our Cultural Sovereignty: The Second Centur y of Canadian

Broadcasting (2003), online: www2.parl.gc.ca /Content/HOC/Committe e/381/

CHPC/GovResponse/RP1726418/CHPC_Rpt02_GvtRsp/GvtRsp_Part1-e.pdf.