Fine tuning the Broadcasting Act

There have been two bills introduced in the Senate recently that seek to bring the CRTC's powers under the Broadcasting Act more into line with the powers it enjoys under the Telecommunications Act. This makes good sense in an era of convergence. The first bill, S-7, was sponsored by Senator Sheila Finestone and would grant the CRTC the same power to award costs in broadcasting matters as it has on the telecom side (CCR, June 21/01). This is reasonable given the increasing complexity and competitiveness of the broadcasting environment. It is worth noting that public interest interveners have been the primary, if not sole, beneficiaries of the CRTC's costing awards on the telecom side. It could be expected this would hold true in broadcasting as well. S-7 was passed by the Senate on June 7, 2001. The second bill, S-29, aims to give the CRTC the same power to review and vary its broadcasting decisions as it has on the telecom side. S-29 was sponsored by Senator Jean-Robert Gauthier and was given first reading on June 11, 2001. S-29 likely stems from Senator Gauthier's unsuccessful court challenge of a CRTC decision involving the distribution of tfo in Quebec (CCR, July 4/01). Irrespective of its motivation, S-29 proposes a reasonable change. In the current communications environment, a review and vary power is just as necessary in broadcasting as in telecom. Both areas involve complex technical, competitive and public policy considerations, which may warrant the review of a CRTC decision on occasion. It should be noted, however, that while the CRTC is asked to reconsider its telecom decisions from time to time, it seldom actually varies those decisions. The CRTC has set a high standard for modifying decisions and has a track record of holding to that standard. If it were to adopt the same approach on the broadcasting side, there would be little reason to fear a cloud of regulatory uncertainty brought on by a flood of review and vary applications. The CRTC already has the power to review and vary some of its broadcasting decisions. The CRTC can reconsider its policies and regulations at any time. The CRTC also has a limited review and vary power with respect to mandatory orders issued pursuant to section 12(2) of the Broadcasting Act. According to section 12(3), a person affected by a section 12(2) order can apply within 30 days to have the order reconsidered. This provision would likely have to be repealed in order for the S-29 review power to be applicable to section 12(2) orders. It would make sense to take this step since the 30-day time limit is difficult to justify in situations that may involve complex technical and competitive issues. Furthermore, in the new communications environment it is no longer reasonable to limit this remedy to persons directly affected by the order. Public interest advocates and other interested parties should have the opportunity to ask the CRTC to review a section 12 order that they believe is in error. There is no reason why their sole avenue of recourse should be the courts. Finally, the CRTC does not have the power to review a decision to grant a broadcasting licence pursuant to section 9, although it does have a limited review power under section 9(1)(c) with respect to the licence conditions it may impose. As with section 12(3), this latter provision would likely have to be amended to give full effect to the S-29 power. In any event, assuming the CRTC maintains the high review and vary threshold established on the telecom side, there does not appear to be any fear of a flood of applications from would-be licensees whose applications have been denied. In addition, as the CRTC moves closer to a regime where regulatory requirements are set out in general regulations for most broadcasting undertakings, the need for licensing appears likely to diminish. While the limited availability of spectrum in major urban centres will continue to require some form of licensing for over-the-air broadcasting, in other situations licensing may become a thing of the past. The review of licensing decisions under the S-29 power would then be a moot issue. Christopher Taylor is an Ottawa communications lawyer. He can be reached at cataylor@cyberus.ca.

Fine tuning the Broadcasting Act

Broadcast | August 30, 2001

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