Blog

The Basic Problem: everything was seen as “broadcasting”

The Basic Problem: everything was seen as “broadcasting”

Occasionally a disaster brings a dose of reality into the consideration of abstract issues. The COVID19 pandemic points out a glaring mistake at the heart of the BTLR report. All over North America, demand for telecommunications services is surging. Businesses are responding by moving on-line as never before. Telephone usage has gone up. People deprived of face-to-face communication wish to communicate by voice calling more frequently, to the degree that some networks are showing strain. Mobile usage has gone down (we are out less), while domestic wi-fi usage has surged.

This reaction is a foreseeable consequence of enforced social isolation: greater reliance on telecommunications.

The Internet and IP-based technologies are at the centre of helping to organize the economic and social affairs of the nation. Whether it be businesses going on-line, or people using the telephone more often, they are engaging in the increased use of internet-based technologies. People are able to transact business or keep in touch despite isolation.

A telephone call now transmits over equipment similar in principle to what makes a website work, and whether your device is fixed or mobile, it runs on IP (Internet Protocol). So do the other newer forms of communication, such as WhatsApp, Zoom, and the like.

Nothing surprising here: except that people are not engaged in what we normally understand as “broadcasting”. They are not engaging in few-to-many communication through licensed channels regulated by the Canadian federal government. That much is obvious.

Or you would have thought it was obvious.

Yet the government-sponsored report on the future of our communications legislation (the Broadcasting and Telecommunications Legislative Review Panel’s Report) ignored the unique nature of the Internet. In fact, to a degree scarcely credible, it deliberately assimilated very large proportions of ordinary internet traffic, whether video or print, to the tightly regulated scheme of the Canadian Broadcasting Act.

Why?

Two different kinds of reasoning may be at work here.

The first is the issue of subsidies and privileged status.

The advent of the Internet, and more precisely large distribution platforms (Netflix, Amazon Prime), have presented an economic challenge to the closely regulated world of Canadian broadcasting.

Moreover, the large platforms have also sucked advertising revenue out of the newspaper business.

So two powerful client groups have been able to hammer the government with their cries of pain.

The broadcasters have always been closely regulated. They are accustomed to world where tax dollars have been available for Canadian program production, and to controlling the flow of subsidies by a close relationship to government cultural agencies. Since the basic cultural issue has been defined as making Canadian television programming, rather than measuring how much or how well it is appreciated by Canadian audiences, broadcasting policy has been focused on producer subsidies, and tight control has been exercised over what is considered Canadian.

As to the newspapers, they are in a desperate plight. The efficiency of search engines has stripped them of advertising revenue, and even long-time advocates of the free press are attracted to the idea of receiving government subsidies. While newspapers, particularly the large dailies have been independent of government, and virtually unregulated, they are powerful instruments of political and cultural opinion. Politicians of all stripes are very interested in remaining on friendly terms with newspapers and those who own them.

The second basis on which to assimilate the Internet to broadcasting is that of the lack of a legal model for the Internet. The cable system was absorbed into broadcasting by the Capital Cities case in 1970. Why not absorb the Internet into the broadcasting model? Eliminate or control the competition by legal fiat.

The trouble is that the Internet does not fit into any of the prevailing legal frameworks for communications activities. The law knows only a few forms of communications entity. The first is the broadcaster, a twentieth century concept, where it is assumed that the few speak to the many, and that, since the few use radio waves that cross national and provincial borders, regulation is appropriate. The second is the telecommunications carrier, which in the twentieth century meant the telephone company. In that regime, content was not controlled, but the regulator sought to control the market power of the big carriers to prevent them from exploiting their customer base. The third legal framework is that surrounding the printing press, which has enjoyed enormous freedom from government interference. The fourth framework applies to the ordinary human voice. No one needs a government licence to speak.

When you use “broadcasting” to publish something, you need a government licence. Broadcasters have been very carefully controlled. They are subject to an immense body of requirements, and can be brought before the CRTC for failure to comply. Lest you think this an exaggeration, I was a Commissioner on a CRTC panel that admonished the broadcasters of a Finnish-language radio program in Thunder Bay to increase its Canadian content. As there is only one hymn composed in the Finnish language by a Canadian, the church choir had to sing that hymn at every Sunday to qualify for its Canadian content quota. I would not have believed this unless I had seen it myself.

There comes a point when you realize that what you are involved in is stupid, unconscionable, and odious. That was my breaking point with the Broadcasting Act.

The Panel has sought to save the regulated broadcasting scheme, and its legally privileged participants, from new forms of competition. They justified their conclusion on the ground that, since the current definition of “broadcasting” covers any form of full motion video, then the regulator is justified to exponentially increase the number of entities subject to the Broadcasting Act. I use the word “exponential” advisedly. In this conception, Aunt Helen’s sending of kitten videos to Facebook is “broadcasting.” It might be exempted from detailed regulation or not according as the future CRTC may decide. In the future imagined by the Report, it would be in the gift of a temporary collection of regulators, and not Parliament, to define what you can communicate across the Internet without a government licence, or determine what fee must be paid to avoid the need for one.

The Panel does not stop at even this enormous expansion of federal regulatory reach – capturing all video across the Internet as “broadcasting”. Since newspapers are in sorry shape from Internet-based forms of competition, a vast increase of federal jurisdiction (or regulation) over “printed”, that is, alpha-numeric matter was also thought justified.

The Panel saw the world solely from the point of view of how the Internet affects broadcasters, and the domestic video production industry. Having once taken this tunneled point of view, it doubled down by seeking to extend CRTC jurisdiction over (formerly) printed matter (now ‘alphanumeric content’) by means of “registration”, and proposed using registration as the basis for a very extensive system of content control of what people will read on line. All in the name of government certifying ‘trusted’ news sources.

It is customary to try to find nice things to say about a report before trashing it. On this occasion, we decline the opportunity. While there are a few lesser recommendations we could support, mostly on the telecommunications side, its major thrusts are irredeemable. A free and open society demands free and open communications, for every sort of reason, political, economic, and social. This obvious point escaped the Panel.

So while Canadian react to the COVID19 virus by practical and effective measures, as they must, there looms over these efforts the menace of a huge power grab by the federal government, if the Panel’s report is accepted as written.

Does your website need a federal licence? Will you need to ‘register’ your website or newsletter with a future CRTC? What conditions will apply? Will your Facebook or Twitter postings be censored by both the platforms and by federal law? You had better ask yourself these questions, because the authors of the Report have plans for you. Bad ones.