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

FR A M EWOR K

A. THE SCOPE OF TELECOMMUNICATIONS

L AW

Historically, telecommunications law in Canada was exclusively within

administrative l aw. A body of r ulings from the Canadian R adio-tele-

vision and Telecommunications Commission (CRTC), accompanied by

judicial determin ations by way of appeal, review, or enforcement, pro-

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

regulated industr y. The 1980s, however, brought the begin ning 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 med ium of the Internet i n 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 vi sual and aural e xpression, converted

to electronic “bits” and communicated as such.

A medium so inter national, decentralized, and almost universa lly

accessible as t he Internet is, practically speaking, beyond t he scope

of ef fective reg ulation, 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 b eyond

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

TELECOMMUNICATIONS LAW

2

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

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

to the legal and governmental structure s applicable in those societies.

While certai nly extrater ritorial, cyberspace is not ex traterrestr ial. The

extent of its perva siveness is such t hat a ll areas of law are potential-

ly applicable to its application if real society is to participate in t he

medium while also being protected from adverse consequences that

would otherwise di srupt society.3

Despite theoretical and practical diff‌iculties in application, legal

concepts and principles have effectively adapted to new situations in

many context s and will undoubtedly move to encompass current and

future technology and media of communication appropriately. This

may be by way of direct application of ex isting law and policy or by

creation of new i nfrastr ucture such as the di spute 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 a s telecommunicat ions law?

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

be simply subcategori zed a nd 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 ex ist 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 a s 1991 and 1993. This framework

will continue for the immediate future, notwithstanding that even at

the time of enactment, the legi slation presented a structure challenged

by the Internet and other technological in novation 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 stand ing committees of the House of Commons concern ing

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 work 3

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 proces s of deregulation but also by the inclusion w ithin 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 i nclusions to any holistic t reatment of “telecommuni-

cations law” in today ’s environment.

A refocusing on aspects of constitutional law is also necessary.

While constitutional jurisdiction was relatively clear w ith 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 t he governmental and regulatory measures that have served

the industr y to the pre sent. Ironically, the political dimensions of this

period ref‌lect the same political polarity that is demonstrated in the

two parliamentar y reports in 2003 and that wil l shape the future polit-

ical debate over the re structuri ng 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 consta nt

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: w ww.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/ HousePublic ations/ 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.