Responding to the New Environment: A Call for Comments

From: Innovation, Science and Economic Development Canada

Review of the Canadian Communications Legislative Framework

September 24, 2018
Broadcasting and Telecommunications Legislative Review Panel

Introduction

…A world-class communications sector should enable Canadians to connect with each other and the world, be competitive, be innovative, contribute to economic growth, and provide reliable services at affordable rates to Canadians across the country.

Our communications sector should also enable and promote culture as touchpoints for Canadians and be the foundation for Canadian content and culture in English and French, which thrive in Canada and abroad. It should also enable Canadians to participate in the free flow and exchange of information, supporting the principles of Canadian democracy. Finally, a world-class communications sector for Canada should safeguard the interests of Canadian consumers and support the safety, security, and privacy of Canadians.

Broadcasting and Telecommunications Legislative Review Panel,
Terms of Reference, 5 June 2018

The digital revolution has disrupted and transformed telecommunications and broadcasting sectors worldwide, creating radically new economic, cultural, and technological models. These models are in a state of continuous change, which is unfolding at an unprecedented rate. Innovation is the watchword of a new environment, based on a re-invention of the use of communications networks and services by consumers, creators, financial partners and service providers.

Digital disruption has been transformational and global, challenging the ability of sovereign states to enforce existing national policies and regulatory frameworks.

Enormous opportunities and benefits accompany these changes; however, the potentially negative implications and consequences are equally significant.

The opportunities and challenges of the new environment make it imperative that Canada has effective legislative and regulatory tools in place to support increased innovation, competition, diversity and choice.

With this in mind, the federal government announced the creation of an expert panel to review the suite of legislation that governs the telecommunications and broadcasting sectors, with a view to ensuring that the Canadian communication sector achieves world-class standards.

The members of the Broadcasting and Telecommunications Legislative Review Panel (the Panel) are listed in Appendix A.

Given the linkages that exist in the suite of legislation governing telecommunications and broadcasting, the Panel has been charged with undertaking a joint review of the Telecommunications Act, the Radiocommunication Act, and the Broadcasting Act. It is expected to present recommendations on changes that may be needed to maximize the benefits that the digital age brings to citizens, artists and creators, the communications industry, and the economy as a whole.

The Panel is releasing this document to call for comments from interested individuals and organizations on the issues related to its mandate and the questions set out in its Terms of Reference.

This document discusses the broad themes of the Review as envisioned by the Panel, describes the Panel's process of consultation and engagement, and reproduces the questions from the Terms of Reference.

Themes of the Review

Since its establishment, the Panel has considered the scope of its mandate and reflected on how to best capture the wide-ranging implications of the issues on which it has been asked to advise. The Panel must assess whether the legislative objectives set out in section 3 of the Broadcasting Act and section 7 of the Telecommunications Act remain relevant in the current environment. But the Panel's review must go well beyond that. To assist in its review, the Panel has identified four broad themes that are intended to help guide its work and structure meaningful dialogue during its consultation process.

Each theme has implications for the public policy objectives, definitions and substantive provisions currently set out in the three pieces of legislation under review.

The Panel recognizes that some issues may not neatly fit in a single theme.

The four themes are:

  1. Reducing barriers to access by all Canadians to advanced telecommunications networks
  2. Supporting creation, production and discoverability of Canadian content
  3. Improving the rights of the digital consumer
  4. Renewing the institutional framework for the communications sector

What follows is a discussion of each of the themes. It is intended to stimulate new thinking on the issues under consideration.

A. Reducing barriers to access by all Canadians to advanced telecommunications networks

Throughout its history, technological change has enabled Canada to overcome the challenges and exploit the potential of its vast geography.

Today, Canadians rely on advanced telecommunications to connect, communicate, innovate, consume, study, work, and participate in Canadian society and in an increasingly global digital economy. It has become more important than ever to ensure that all Canadians are able to benefit from innovation and investment in state-of-the-art infrastructure that enables access to safe, secure and high-quality telecommunications services at affordable prices.

However, not all Canadians have adequate, or in some cases any, access to higher speed broadband services for reasons that include lack of coverage, slower network speeds and insufficient digital literacy. In order to create a truly inclusive digital society, and to bridge existing digital divides, it is particularly important to enable improved access for Canadians in rural and remote areas, Indigenous communities, and Canadians with disabilities.

The Canadian telecommunications carriers that have evolved from yesterday's telephone and cable TV companies currently operate sophisticated digital network facilities. These facilities must, however, be continuously updated and expanded to ensure all Canadians have access to advanced services. A number of new entrants have contributed to the rollout of new services and facilities, enhancing both the availability and affordability of services.

Facilities-based telecommunications carriers must be able to efficiently roll out new infrastructure to increase the functionality, capacity, and reach of their networks to address consumer demand, particularly for an increasing range of domestic and foreign online services and applications. The proliferation of devices, operators and users that will emerge in the era of 5G wireless networks—and beyond—requires a legislative framework that is able to ensure the provision of adequate spectrum for advanced services, safe and efficient radio apparatus, and access to the 'passive infrastructure' (i.e. poles, ducts and rights-of-way) required to accommodate the advanced and ubiquitous networks of tomorrow.

Digital transformation also poses new challenges to the safety and security of Canada's telecommunications infrastructure. Lack of adequate network security undermines both the capacity of the government and the industry to respond effectively to new threats as they arise, as well as the trust that Canadians have historically placed in their telecommunications system. While openness and 'net neutrality'—a concept related to the long-standing principle of 'common carriage'—will continue as key elements of Canada's legislative and regulatory frameworks, there may be other principles that should be applied in order to balance the need for an open internet with security in the digital context.

This Review will need to consider how the governing legislation can remain both flexible enough to deal with continuing technological and market changes, and responsive to the need to ensure that all Canadians benefit in a timely way from competitive, innovative and affordable broadband infrastructure.

B. Supporting creation, production and discoverability of Canadian content

Digital disruption has had a significant effect on creators, culture and content in both English and French communications markets. The economics of creation, distribution, consumption and pricing have all been affected. The shifting market dynamics are likely to be a permanent aspect of the landscape.

In this new environment, the global demand for high-quality film and television programming has never been greater. With this demand has come a substantial growth of the foreign location and service production sector in Canada. In this sector, Canadians have demonstrated both the capacity and talent to produce high quality content for global distribution.

However, producing quality Canadian content—particularly drama and children's programming—remains a challenge under the current Canadian content rules that were designed to focus on a domestic rather than global marketplace. This is particularly problematic as Canadians shift viewing to online streaming services that directly compete with regulated Canadian broadcasters. At present, online programming services are exempted from Canadian content requirements.

For Canadian content programming to succeed both domestically and in the international marketplace, there must be clear policies that support quality creation, production and discoverability.

It is important to consider how the legislative and regulatory framework may be modified to ensure that all players, including online players that garner revenue in Canada, play a role in the creation, production, and distribution of Canadian content. This may also give rise to opportunities for Canadian broadcasters, producers, distributors and other partners to hold and exploit intellectual property rights in regard to their productions.

In a world of almost limitless choice, with customized offerings and an exponential growth of user-generated content, the discoverability of Canadian content—including that produced by Indigenous communities, official language minority communities, diverse communities and Canadians with disabilities—is more difficult than in the past. New tools and supports may be needed to overcome this discoverability challenge. Adding to this challenge is the fact that digital platforms increasingly use artificial intelligence and data-driven techniques to predict individual user preferences and tailor content offers to meet them.

In this regard, the collection of data on consumer use and preferences is a new source of value and is transforming traditional lines of business. These changing business models have significant implications for the regulatory approaches needed to meet public policy goals.

The role of CBC/Radio-Canada as a leader in showcasing Canadian content is particularly important in this context and may need to be adapted to a global, digital environment. Its contribution as a local and Canadian source of news and information should be part of this re-examination.

C. Improving the rights of the digital consumer

The Internet and digital technology have transformed social, economic, cultural, and civic participation of Canadians, making way for a new kind of consumer—one who is engaged as a creator, citizen, and a full participant in the digital society and economy.

For digital consumers, the pace of modern life requires ubiquitous and immediate access to broadband services at affordable rates. The communications services and contracts that govern them have become more diverse and complex. As a result, it is more difficult for consumers to understand the nature of their consent to complex terms of service as well as their rights and responsibilities, and exercise meaningful control over their personal information.

Further, Canadians generate an elaborate digital footprint about themselves and all aspects of their lives. As noted earlier, the collection of large amounts of personal information—big data—has become tremendously valuable, allowing the application of artificial intelligence and data analytics to the mass of consumer information in order to create new products and tailored offers. Personal information is also routinely traded by consumers in exchange for free or personalized services, posing new challenges to their privacy, safety and security. Online activities amplify existing risks while creating new ones, including identity theft, cyberviolence, and unintended exposure of private information. It is challenging to balance the neutrality and openness of the Internet with the protection of privacy and personal security for digital consumers.

The free flow and exchange of information supports the democratic process and democratic institutions, and Canadians are increasingly exercising their citizenry through digital participation. However, the proliferation of false or misleading information presents new challenges. In this context, independent, trusted, accurate, diverse, as well as local and Canadian sources of news and information are essential for an informed citizenry, civic participation, and democratic process.

In this rapidly evolving communications landscape, legislation should appropriately address the implications of these changes for the rights of digital citizens and digital consumers.

D. Renewing the institutional framework for the communications sector

In addition to 'getting the rules' right, it is equally important to ensure the appropriateness of the current institutional framework governing the communications sector. A review of the institutional framework should include the allocation of regulatory responsibilities between the government and the regulator as well as the mechanisms for legal oversight in the system.

It is also necessary to consider whether new or different legal powers or regulatory tools may be needed to improve the effectiveness and efficiency of the system and the governance of the communications sector in the digital environment.

The Consultation Process

The Panel invites written submissions in response to this Call for Comments and any of the questions set out in the Terms of Reference, reproduced in Appendix B. Comments on relevant issues not specifically addressed in this document or captured in the questions are also welcome.

The deadline for written submissions is November 30, 2018.

Your comments can be:

  1. Submitted through our online feedback form
  2. Sent by email to ic.btlr-elmrt.ic@canada.ca
  3. Sent in hardcopy format by mail to:

    The Broadcasting and Telecommunications Legislative Review Panel
    c/o Innovation, Science and Economic Development Canada
    235 Queen Street, 1st Floor
    Ottawa, Ontario K1A 0H5

The Panel is committed to providing relevant, practical and implementable recommendations to government. To this end, those submissions that offer not just perspective and insight but detailed suggestions, are evidence-based and include relevant legal or policy research, and measures or models adopted in other jurisdictions would be valuable. Specific areas of proposed amendments to the Telecommunications Act, Radiocommunication Act, and Broadcasting Act would also be helpful.

Written submissions will be made publicly available through the Panel website after the deadline.

The Panel's consultation process will also include participating in a number of industry and academic conferences and meeting with a cross-section of experts, creators, stakeholders and other interested parties, including those from Indigenous and official-language minority communities.

In order to facilitate public engagement, the Panel will prepare a series of online videos in English and French with subject-matter experts who will provide overviews of the three pieces of legislation under review; 5G technology and its implications; and the recent CRTC report Harnessing Change: The Future of Programming Distribution in Canada. These online videos will be made available on the Broadcasting and Telecommunications Legislative Review website.

The Panel expects to issue a report in the spring of 2019 on what it has heard during this consultation process. The Panel will announce at that time what further consultations, if any, will be undertaken in advance of its final report by January 31, 2020.

Appendix A: Membership

The members of the Broadcasting and Telecommunications Legislative Review Panel are:

Janet Yale, who chairs the panel, is currently the president and CEO of The Arthritis Society. She has a long history in the communications sector, having previously served as Executive Vice-President at TELUS and the President and CEO of the Canadian Cable Television Association. Ms. Yale also served as a Director General at the CRTC and as General Counsel at the Consumers Association of Canada. She is recognized as a leader in the not-for-profit sector, and currently serves on the boards of Samara, the Ottawa Art Gallery and Business for the Arts.

Peter S. Grant is Counsel and past Chair of the Technology, Communications and Intellectual Property Group at law firm McCarthy Tétrault LLP in Toronto. He is considered a pioneer in the field of communications law in Canada. His practice touches all areas of communications law—broadcasting and cable television, satellite services, copyright, mass media and press law, cultural industries and telecommunications.

Hank Intven is an Adjunct Professor at the University of Victoria where he teaches telecommunications, broadcasting and Internet law. He has practiced law with a major law firm for more than 30 years. He is recognized as a leading advisor to business, governments and regulators in the telecommunications and broadcasting industries in Canada and internationally.

Marina Pavlović is an Associate Professor at the Faculty of Law, Common Law Section at the University of Ottawa and a member of its Centre for Law, Technology and Society. Her expertise is in consumer rights in the digital society, and technology policy and regulation. Prior to joining the University of Ottawa in 2007, she was an in-house counsel for a telecommunication company and also practiced in the area of international commercial arbitration.

Monique Simard has a long and distinguished track record in the cultural industries. She was President and CEO of the Société de développement des entreprises culturelles (SODEC) from 2014 to 2018 and was previously Director General of the National Film Board of Canada's French Program. Ms. Simard was Commissioner of the Commision de la personne du Québec from 1983 to 1988. In April 2018, she was appointed as Chair of the Board of the Quebecor Fund.

Monica Song leads the Communications Law practice at Dentons Canada LLP. She has over 20 years of experience as a leading Canadian lawyer in telecommunications and broadcasting, with in-depth knowledge of the legal, regulatory and public policy issues affecting the communications industry.

Pierre Trudel is a law professor at the Public Law Research Center of the Université de Montréal. He has also been a visiting professor at Université Laval (Québec City), at Université de Paris II (Panthéon-Assas) and at Université de Namur (Belgium). From 1986 to 1988, he was the research director for the Caplan-Sauvageau Task Force on Broadcasting Policy. He currently teaches and researches cyberspace law.

Appendix B: Questions as set out in the Terms of reference

Telecommunications Act and Radiocommunication Act

1. Universal Access and Deployment

1.1 Are the right legislative tools in place to further the objective of affordable high quality access for all Canadians, including those in rural, remote and Indigenous communities?

1.2 Given the importance of passive infrastructure for network deployment and the expected growth of 5G wireless, are the right provisions in place for governance of these assets?

2. Competition, Innovation, and Affordability

2.1 Are legislative changes warranted to better promote competition, innovation, and affordability?

3. Net Neutrality

3.1 Are current legislative provisions well-positioned to protect net neutrality principles in the future?

4. Consumer Protection, Rights and Accessibility

4.1 Are further improvements pertaining to consumer protection, rights, and accessibility required in legislation?

5. Safety, Security and Privacy

5.1 Keeping in mind the broader legislative framework, to what extent should the concepts of safety and security be included in the Telecommunications Act/Radiocommunication Act?

6. Effective Spectrum Regulation

6.1 Are the right legislative tools in place to balance the need for flexibility to rapidly introduce new wireless technologies with the need to ensure devices can be used safely, securely, and free of interference?

7. Governance and Effective Administration

7.1 Is the current allocation of responsibilities among the CRTC and other government departments appropriate in the modern context and able to support competition in the telecommunications market?

7.2 Does the legislation strike the right balance between enabling government to set overall policy direction while maintaining regulatory independence in an efficient and effective way?

Broadcasting Act

8. Broadcasting Definitions

8.1 How can the concept of broadcasting remain relevant in an open and shifting communications landscape?

8.2 How can legislation promote access to Canadian voices on the Internet, in both official languages, and on all platforms?

9. Broadcasting Policy Objectives

9.1 How can the objectives of the Broadcasting Act be adapted to ensure that they are relevant in today's more open, global, and competitive environment?

9.2 Should certain objectives be prioritized? If so, which ones? What should be added?

9.3 What might a new approach to achieving the Act's policy objectives in a modern legislative context look like?

10. Support for Canadian Content and Creative Industries

10.1 How can we ensure that Canadian and non-Canadian online players play a role in supporting the creation, production, and distribution of Canadian content?

10.2 How can the CRTC be empowered to implement and regulate according to a modernized Broadcasting Act in order to protect, support, and promote our culture in both official languages?

10.3 How should legislative tools ensure the availability of Canadian content on the different types of platforms and devices that Canadians use to access content?

11. Democracy, News and Citizenship

11.1 Are current legislative provisions sufficient to ensure the provision of trusted, accurate, and quality news and information?

11.2 Are there specific changes that should be made to legislation to ensure the continuing viability of local news?

12. Cultural Diversity

12.1 How can the principle of cultural diversity be addressed in a modern legislative context?

13. National Public Broadcaster

13.1 How should the mandate of the national public broadcaster be updated in light of the more open, global, and competitive communications environment?

13.2 Through what mechanisms can government enhance the independence and stability of CBC/Radio-Canada?

13.3 How can CBC/Radio-Canada play a role as a leader among cultural and news organizations and in showcasing Canadian content, including local news?

13.4 How can CBC/Radio-Canada promote Canadian culture and voices to the world, including on the Internet?

13.5 How can CBC/Radio-Canada contribute to reconciliation with Indigenous Peoples and the telling of Indigenous stories by Indigenous Peoples?

13.6 How can CBC/Radio-Canada support and protect the vitality of Canada's official languages and official language minority communities?

14. Governance and Effective Administration

14.1 Does the Broadcasting Act strike the right balance between enabling government to set overall policy direction while maintaining regulatory independence in an efficient and effective way?

14.2 What is the appropriate level of government oversight of CRTC broadcasting licencing and policy decisions?

14.3 How can a modernized Broadcasting Act improve the functioning and efficiency of the CRTC and the regulatory framework?

14.4 Are there tools that the CRTC does not have in the Broadcasting Act that it should?

14.5 How can accountability and transparency in the availability and discovery of digital cultural content be enabled, notably with access to local content?

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