Historical and Constitutional Framework

AuthorRobert G. Howell
ProfessionProfessor. Faculty of Law University of Victoria British Columbia
Pages1-46
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.

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