Regulatory Structure and Features

AuthorRobert G. Howell
ProfessionProfessor. Faculty of Law University of Victoria British Columbia
Cha pter 2
a. IndustrIes and seCtors In Flux
The Broadcasting Act (1 991)1 and the Telecommunications Act (19 93)2
were designed to consolidate and moder nize the telecommunications
legislative structure in C anada. The division between point-to-mass
broadcasting and point-to-point telecommunications is the essence of
this structure. In addition, the Radiocommunication Act3 provides regu-
lation of technical features in broadcasti ng, including the alloc ation of
radio frequencies. However, r apid technological, political, and social
changes, mooted even a s the 1991 and 1993 legislation were being en-
acted, challenged the broadcasting /telecommunications demarcation
and by 2003, a new and integrated legislative structure between al l
three enactments wa s being contemplated.4
1 Broadcasting Act, S.C. 1991, c. 11.
2 Telecommunications Act, S.C. 1993, c. 38.
3 Radiocommunica tion Act, R.S.C. 1985, c. R-2, as am. by S.C. 1989, c. 17.
4 House of Commons, St anding Committee on Cana dian Heritage, Our Cultural
Sovereignty: The Second Cent ury of Canadian Broadcast ing, (June 2003) at 17
and 62, online: w ations/Publication. aspx?DocId=1
032284&Langu age=E&Mode=1&Parl=37&Ses=2 [Canadian Herit age Report].
See also Ca nadian Radio-telev ision and Telecommunications Comm ission
(CRTC), 2008–2009 Estimates, Pa rt 3, Report on Plans and Prior ities, Section I,
Chairm an’s Message, online: CRTC
rpps/2008_09.htm. Unless accompan ied by a url, all CRTC documents refer to
print versions .
Organizational integration is ref‌lective of system convergence.
Technological change, particularly that of digitization, has provided
the capacity for convergence between these two systems and industries
of communications, and over 2007–8 the topic received attention in
the st udy by the Canadian R adio-television and Telecommunications
Commission (CRTC) in its New Media Project Initiative.5 Yet signif‌i-
cant differences of concept and policy remain between broadcasting
and non-broadcasting. This is illustrated aptly by openly conf‌lict ing
policies with respect to Canadian ownership in both broadcast and non-
broadcast sectors by two standing committees of the House of Com-
mons. Reporting almost simultaneously in 2003, the industry-focused
non-broadcast standi ng committee favoured removal of all ownership
restrictions in bot h sectors. The cultural- and heritage-focused stand-
ing committee viewed any amelioration of Canadian ownership re-
quirements as a matter of concern.6
To have contemplated in 1991–93 giving legislative guidance to any
sense of context ual integration between the two systems would have
been quite premature. The inability and impracticality of affording ad-
vance legislative direction with re spect to technological change was
recognized as ea rly as 1979 by the CRTC,7 just three years after the
1976 integration of reg ulatory juri sdiction in t he CRTC.8 At that time,
there was little inkling of the position pertaining today, and t he mer-
ging of regulatory control over bot h s ystems seems to have ref‌lected
convenience more than logic. In hindsight, however, it was a fortuitous
change that ha s provided the CRTC, through its respect ive divisions,
with a working experience and expertise in both sectors. This feature of
a common regulator administer ing integrated legislation will cert ainly
bring eff‌iciencies in areas of convergence, but otherwise t he legislation
5 See text accompa nying note 39, below in this chapter, and CRTC, Perspe ctives
on Canadian Broad casting in New Media: A Compilation of Rese arch and Stake-
holder Views (May 20 08), online: CRTC ww /En g/me dia /rp0 80515.
pdf. See also com ments by the CRTC Chairman : “We are seeing more an d more
evidence th at the new technologies are not only dr iving innovation, but als o a
convergence between t he two industries” in CRTC 2008–2009 Estim ates, ibid.
6 See text accompa nying notes 76–77, below in this chapter.
7 See CNCP Telecommunications: Interconn ection with Bell Canada (17 May 1979),
Telecom Decision CRTC 79-11, 5 C.R.T. 117 at Part 9, s. 1 [Telecom Decision
CRTC 79-11], noting: “It may be that a point ha s been reached where, with t he
rapidity of tech nological developments, it is impos sible to anticipate all such
changes and to de velop a comprehensive policy prior to the con sideration of
specif‌ic ca ses.”
8 See Chapter 1, text acc ompanying notes 15–16.
Regulator y Structure and Feature s 49
and the admi nistration in both qualif‌ication and decision ma king will
necessarily present composites within t he whole.
The overall political objective, both historical and current, is identi-
cal for broadcast and non-broadcast communications in the promotion
of a national Canadi an i nterest, presented in t he context of program-
ming for broadcasting and ownership for non-broadcasting. Even th is,
however, is today more diff‌icult to attain. Soci al and politica l perspec-
tives, nationally and internationally, have imposed new dimensions. In
particular, the global political resurgence from the 1980s of capitalism,
private enterpr ise, and competition was led by key Asian economies.9
In the West, Thatcherism and Reagonomics challenged regulation, state
ownership, and high taxation.10 Although initially uncertain, the trend
was consolidated with the collapse of t he Communist bloc in 1989,
ending the Cold War and enshrining capitalism, competition, and freer
trade principles in reg ional and global trading arr angements from the
late 1980s to mid-1990s.11 Global telecommunications infrastructure
and computer technology, freed from the all-consuming demands of
Cold War strategic defence requirements, became available for develop-
ment as civilian commodities.12
Convergence of broadcast and non-broadcast service s in Canada
was seen initially as between telephone and television cable transmis-
sions utilizing the dual infrastructure of the telephone and former
telegraph services, along with satellite industr ies. In effect, it pre-
sented a Canadian-owned competition model.13 Actively promoted by
governm ent,14 it ha s reasonably succeeded. Former exclusively cable
providers are act ive in the provision of non-broadcast services, and
9 See David Rey nolds, One World Divisible: A Global History Since 1945 (New York:
W.W. Norton, 2000) c. 12 at 403ff.
10 Ibid. at 453.
11 See, for example, North Am erican Free Trade Agreement Be tween the Government
of Canada, the Go vernment of Mexico and the G overnment of the United States,
17 December 1992, Can. T.S. 1994 No. 2, 32 I.L.M. 289 (entered into force 1
January 1994) [NAF TA], online: Foreign Affa irs and Internationa l Trade Canada rade-agreements-accords- commerciaux/agr-acc/n afta-
alena/texte/index.aspx); and the Marrakesh Agreeme nt Establishing the World
Tra de Organiza tion, 15 Apri l 1994, (entered into force 1 Januar y 1995), online: /docs_e /legal_ e/04-w to_e.htm.
12 Reynolds, above note 9 at 494 –538, is essential rea ding in these respec ts.
13 See Telecommunications Service in Can ada: An Industry Over view, s. 6.2 “Conver-
gence Policy,” online:
14 See Mini ster of Canadian Herit age (S. Copps) & Minister of Indu stry (J. Man-
ley), News Release, “Competition and Cult ure Set to Gain in Convergence Policy
Framework” (6 August 1996), online: ww w.ic.gc .ca /epic /site /smt- gst. nsf /en /

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