Weighing the pros and cons of a single Communications Act

A former CRTC vice-chair and a veteran communications lawyer agree that Canada should consider the merits of merging current broadcasting and telecom legislation into a single, unified Communications Act. But they caution that such a move will require some serious soul searching in terms of policy objectives, and a willingness to re-open the debate over foreign ownership of cultural content.In interviews with Network Letter, David Colville, the CRTC's former vice-chair telecommunications, and Lorne Abugov, partner in Osler Hoskin & Harcourt, say they support recent comments by CRTC chair Konrad von Finckenstein calling for a "converged legislative framework". However, that support comes with several caveats."You can take a deck of cards and shuffle them around, but one could ask to what end," asks Abugov. "You can make changes to statutes and you can tinker and you can adjust, but it seems to me that unless you really understand the policy objectives that you're seeking to foster or achieve, you're half way down the path already...or you're trying to remedy something that needs more than a band-aid."The first step, he notes, would be a review to determine if existing Telecommunications Act and Broadcasting Act objectives remain consistent and valid with today's realities, and to create a public policy agenda for moving forward. Second, analyze the objectives and how best to achieve them. "If then the best way to achieve them is through a unified statute, then by all means it's a good idea," Abugov says. "If it's not, then just having a unified statute for the sake of having one, may in fact give rise to more problems."Colville, who served as a CRTC commissioner for 14 years, agrees it may be timely to revisit the policy objectives of both statutes, particularly as the Internet becomes a more popular platform for delivering cultural content. "It seems to me our whole policy as it relates to cultural activity related to telecommunications and information technology is going to have to be considered," he explains. He adds, however, that while it might be easier from an operational perspective to deal with today's horizontally integrated companies using a single piece of legislation, having two Acts hasn't yet constrained the commission's ability to do its job effectively. Re-opening the foreign ownership debateA single Communications Act may well be a good idea, but Colville warns that content would have to be treated separate from carriage - particularly when it comes to foreign ownership. "I think it would have to be done in a way that didn't upset the apple cart insofar as dealing with cultural issues," he says. "I think it's probably fair to say at least some of the political parties would probably support a greater liberalization of foreign ownership rules as it relates to telecommunications and carriage, but probably not as it relates to content," Colville said. But, adds Abugov, even if content remains outside the scope of foreign ownership liberalization, it faces its own challenges in a world where content carriage requirements are becoming less stringent. He notes that traditional protections afforded to Canadian broadcasters don't apply in today's global environment, where the Internet, IP distribution and alternative modes of delivery are changing the way content is consumed."Those protections still work in protecting Canadian broadcasters against US broadcasters coming into Canada and eating our lunch," says Abogov. "But they are now experiencing threats of a different kind, from other technologies that aren't easily fenced off." The ownership issue will likely arise again with the Competition Policy Review Panel (CPRP) report, to be tabled with the Minister of Industry on June 28. A major part of this nearly year-long fact-finding mission was an analysis of the Investment Canada Act and Canada's current foreign ownership limits in telecom and broadcasting. Can a debate about the loosening or elimination of Canada's foreign ownership rules in telecommunications leave content out of the discussion? This is one question likely to be answered by the CPRP later this month. Benefits of a Communications ActIndustry could be the big winner with a single Communications Act. Both Abogov and Colville say a single piece of legislation could provide industry with greater certainty and predictability in how communications firms are regulated."As the business becomes more competitive it's also important that the policy and regulations across these different distribution media which have been treated differently in the past, should be more equitable," says Colville. "To me, I think, that the biggest issue from a policy and regulatory point of view." Unified legislation could also pave the way for greater cooperation and fewer turf wars between the CRTC, Industry Canada, Canadian Heritage and the Competition Bureau of Canada. As well, it could make the regulatory path for mergers and acquisitions more clear cut. For example, Astral Media and Telemedia discovered first hand in 2003 what can happen when two regulatory bodies don't see eye to eye. Astral's bid to purchase more than a dozen radio stations from Telemedia was approved by the CRTC, and then subsequently denied by the Competition Bureau. Astral subsequently agreed to sell some of the stations to Quebecor's TVA, only to have it blocked later by the CRTC."Inter-agency process, uncertainty and the multi-jurisdictional issues could be alleviated to some extent by a single unified statute with an agency that has all the necessary jurisdiction," explains Abugov. While handing over spectrum management to the CRTC might not require establishing a unified Communications Act, Colville suggests it could benefit from the commission's open processes as well as make it easier for companies that have to deal with both Industry Canada and the CRTC for a radio station licence, for example. "That whole process could be more streamlined and managed more effectively," he says. Disadvantages of a Communications ActWhile unified communications legislation presents some advantages to industry and government, there are some disadvantages that might outweigh the benefits. In some situations, Abugov says the political nature of Industry Canada might be better suited to handling broader public policy issues. The current spectrum auction is one such example."That's a national issue, it's a broad issue," he says. "They just can't look at the three companies that are currently competing. They have to look at the public, they have to look at competition in Canada - they have to look at a whole bunch of things." Conversely, the CRTC is an industry-specific regulator which considers issues through a different lens. "They may be somewhat influenced by other sectors, but they are an industry regulator and they make decisions in theory that comply with their statute and are in the best interests of the industry," notes Abugov. Of course, this isn't the first time Canada has entertained the idea of a unified Communications Act. A June 2003 report by the House of Commons Standing Committee on Canadian Heritage not only recommended a single Communications Act, it also called for the Industry and Heritage departments to be replaced by a single Department of Communications, responsible for the broadcasting, telecommunications and cultural industries.Authored by Clifford Lincoln, former parliamentary secretary to the Deputy Prime Minister and chair of the Heritage committee, the report's recommendations were largely ignored by the then Liberal government. Given the current Conservative government's minority standing and soft support in the polls, it's doubtful they will be in any hurry to take on this issue either.

Weighing the pros and cons of a single Communications Act

News | 06/12/2008 4:47 pm EDT

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