Archived — SOR/2001-206

Registration
SOR/2001-206 

Radiocommunication Act

Radiocommunication Act (paragraph 9(1)(c)) Exemption Order — P.C. 2001-1048

Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry, pursuant to subsection 3(2)a of the Radiocommunication Actb, hereby makes the annexed Radiocommunication Act (Paragraph 9(1)(c)) Exemption Order.

  • aS.C. 1989, c. 17, s. 4
  • bS.C. 1989, c. 17, s. 2

Radiocommunication Act (Paragraph 9(1)(c )) Exemption Order

Exemption

1. (1) In this section, "ship or vessel" means any ship or vessel that is under the direction or control of the Department of National Defence and that is outside the coverage area of any satellite carrying an encrypted subscription programming signal distributed by a lawful distributor.

(2) Subject to Section 2, Her Majesty in right of Canada, as represented by the Department of National Defence and members of the Canadian Forces, is exempt from the application of paragraph 9(1)(c) of the Radiocommunication Act on board any ship or vessel.

Condition

2. The exemption under Section  1 is granted on the condition that if there is decoding of any encrypted subscription programming signal it shall be performed under and in accordance with an authorization from a person who has a lawful right to transmit the signal and authorize its decoding.

Coming Into Force

3. This Order comes into force on the day on which it is registered.

Regulatory Impact Analysis Statement

(This statement is not part of the Regulation.)

Description

This order exempts Her Majesty in right of Canada, as represented by the Department of National Defence, and members of the Canadian Forces from the operation of paragraph 9 (1) (c) of the Radiocommunication Act. The exemption applies when a ship or vessel under the direction or control of the Department of National Defence is outside the coverage area of any satellite carrying an encrypted subscription programming signal distributed by a lawful Canadian distributor. The exemption is granted on the condition that if there is decoding of any encrypted subscription programming signal it shall be performed under and in accordance with an authorization from a person who has a lawful right to transmit the signal and authorize its decoding.

In 1991 the Radiocommunication Act was amended to harmonize it with the Broadcasting Act's provisions concerning subscription programming - specifically, encrypted satellite television signals - and to support Canadian broadcast policy.

Paragraph 9(1)(c) of the Radiocommunication Act prohibits decoding encrypted subscription programming signals unless in accordance with an authorization from the lawful distributor of the signal. The lawful distributor is defined under the Radiocommunication Act as a person who has the lawful right in Canada to transmit and authorize the decoding of an encrypted programming signal or encrypted network feed. The Federal Court of Appeal has held that this prohibition is an absolute one which applies to signals emanating from lawful distributors as well as signals emanating from other distributors whether inside or outside Canada. That ruling has some support from the Alberta Court of Appeal. However, more recently, the British Columbia Court of Appeal and Ontario Court of Appeal have ruled that the prohibition only applies to signals emanating from lawful distributors. The Supreme Court of Canada has granted leave to appeal the decision of the British Columbia Court of Appeal. Under the absolute prohibition interpretation, any decoding of an encrypted subscription programming signal done in Canada, or outside Canada while on board specified ships, without authorization from a lawful distributor is illegal under paragraph 9(1)(c).

While living or travelling outside Canada, an individual can subscribe, pay for, receive and decode encrypted satellite programming signals lawfully available in that other jurisdiction, and possess the necessary equipment (because that person is not subject to the Radiocommunication Act). However, on board certain ships (owned or under the control of Her Majesty, or registered or licenced under a Canadian federal law), this same activity would be illegal under the absolute prohibition interpretation - even when those ships are beyond the reach of Canadian satellite signals.

Ships under the direction or control of the Department of National Defence are often continuously deployed in international waters for long periods of time. Personnel serving on Canadian Forces ships are currently unable to receive television by satellite due to an unintended application of Canadian legislation.

By contrast, Canadian army and air force personnel on land postings outside Canada can receive such entertainment. This anomaly occurs because subsection 3(3) of the Radiocommunication Act sets out that the Act applies "... within Canada and on board ... any ship ... owned by or under the control of Her Majesty in right of Canada or a province". Thus the prohibition of Section 9 of the Act applies to personnel on Canadian Forces ships wherever they may be, including foreign and international waters. It does not, however, apply to ground personnel deployed outside Canada.

The use of the Order-in-Council exemption power of subsection 3(2) of the Radiocommunication Act provides a means to address this inequitable treatment. Under this power the Governor in Council may exempt Her Majesty in right of Canada as represented by a person or persons, from any or all of the provisions of the Act.

This exemption order comes into force on the day on which it is registered.

Alternatives

Three alternatives were considered: keeping the status quo, amending the Radiocommunication Act, and making use of the Order-in-Council exemption power of Section  3(2) of the Radiocommunication Act.

Continuing with the existing practice is no longer acceptable because of the inequitable treatment that applies to members of the Canadian Forces on board ships.

Amending the Radiocommunication Act to address this situation was viewed as a long term solution that may occur while addressing other related policy considerations under study.

Using the Order-in-Council exemption power of subsection 3(2) of the Radiocommunication Act provides for the most timely and appropriate response to this situation. The exemption order brings the application of the law (as far as it concerns the Canadian forces) more into line with the general rule that persons are not prohibited by Canadian law from decoding encrypted subscription programming signals while they are in another jurisdiction.

Benefits and Costs

This exemption order, which addresses an unintended application of the Radiocommunication Act, provides an efficient means to address this inequity and improve the quality of life for members of the Canadian Forces. They will be able to receive global programming with Canadian content that will enable them to stay connected with current issues and entertainment from Canada and the world.

No new funds are required.

Consultations

Consultations were undertaken with the officials from the Department of National Defence and the Department of Canadian Heritage. They support this initiative because it improves the quality of life for members of the Canadian Forces on board ships or vessels.

Compliance and Enforcement

The exemption order is required for compliance with Canadian laws and regulations.

Contact

Mr. Dave Dawson, Director, Regulatory Policy and Planning Directorate
Radiocommunications and Broadcasting Regulatory Branch, Industry Canada,
300 Slater Street, Ontario K1A 0C8,
tel.: 613-990-4805; Fax: 613-993-4433; Internet: dawson.david@ic.gc.ca
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