What We Heard Report

From: Innovation, Science and Economic Development Canada

Table of Contents

Message from the Chair

In two short decades, the ways in which Canadians connect, work and consume information have changed dramatically. We now find ourselves in a rapidly evolving digital world: a landscape of new opportunities that previous generations could scarcely have imagined. The digital consumer is more engaged than ever before. While many Canadians benefit from this digital age, some face barriers in accessing new technologies and being able to participate fully in society and the economy.

Others question whether Canada is well prepared to seize the opportunities and meet the challenges that emerge from the scope and scale of constant technological change.

It is in this digital environment that the Minister of Innovation, Science and Economic Development and the Minister of Canadian Heritage tasked us with reviewing Canada's broadcasting and telecommunications legislative framework.

After being appointed in June of 2018, our Panel undertook an extensive outreach and engagement process to hear what Canadians had to say about these new realities and to gain the benefit of their insights. Panel members travelled the country, meeting with interested parties and hearing from a diverse cross section of Canadians. We wanted to hear a wide range of views on the need for legislative change, and we made a particular effort to hear from Indigenous communities and official language minority groups.

The Panel members and I extend our sincere thanks to all interested parties who took the time to contribute their expertise and thoughts during our consultation process.

What follows in this report are the key themes that emerged from our open call for written submissions.

The perspectives and recommendations provided to us will help inform and strengthen our work. We will now focus on completing our final report, with recommendations for legislative change, by January 2020.

Janet Yale

Chair

Who We Heard From

Infographic Descriptor

The graphic indicates that the Panel conducted outreach activities in Vancouver, Calgary, Whitehorse, Yellowknife, Iqaluit, Winnipeg, Toronto, Ottawa, Montreal, Halifax and St. John's.

It shows that 2085 letters and formal submissions were received by the Panel and that its members participated in 12 events or conferences across the country.

It includes the links to four promotional videos that were created by the Panel.

Introduction

The Government has asked the Broadcasting and Telecommunications Legislative Review Panel to present recommendations on legislative changes that may be needed to maximize the benefits the digital age brings to citizens, creators, cultural stakeholders, the communications industry and the Canadian economy. The Government also asked us to undertake consultations during the course of our Review with industry, creators and Canadians, including those from Indigenous communities and official language minority communities (OLMCs).

On September 24, 2018, we issued our consultation document, Review of the Canadian Communications Legislative Framework: Responding to the New Environment: A Call for Comments (attached as Annex A). The document was organized under the following themes:

Our Call for Comments included the questions raised by the Government in its Terms of Reference. In response to the Call for Comments, we received 2,085 letters and written submissions from a wide variety of interested parties. A list of submissions is provided in Annex B.

To complement the written consultation process, Panel members met with Canadians from across the country to identify the critical issues they are facing and to gather thoughts and ideas to help address the complex issues on which we have been asked to make recommendations. We held in-person meetings with interested parties in Vancouver, Calgary, Whitehorse, Yellowknife, Iqaluit, Winnipeg, Toronto, Ottawa, Montreal, Halifax and St. John's. The organizations we met with were diverse and included industry, creators, Indigenous communities, OLMCs, public-interest groups, accessibility groups and others. A complete list is included in Annex C.

The written submissions and in-person meetings reflected a great diversity of perspectives and concerns in matters related to broadcasting and telecommunications. The consultation process also yielded a number of concrete suggestions and areas for legislative amendments.

This report highlights the key themes and messages received in response to our Call for Comments. Throughout the report, we highlight areas of tension identified in our consultation process that have potential implications for legislative reform.

Theme A

Reducing Barriers to Access by all Canadians to Advanced Telecommunications Networks

From the submissions received, we heard consensus from interested parties that affordable access to high-quality broadband networks, both wireline and wireless, is essential to Canadians' ability to participate in digital society. We have organized the submissions received into the following topics:

Economic regulation of Telecommunications

The submissions made it clear that an important objective of telecommunications regulation is to ensure that all Canadians have affordable access to high-quality networks now and in the future. However, there was significant debate over how to achieve this goal. More particularly, there were differences of opinion on the proper policy foundation for economic regulation of telecommunications and on the statutory amendments that are necessary to achieve this objective.

The parties differed on whether the telecommunications policy objectives should support competition between "facilities-based carriers"—those that build out and operate their own transmission facilities to provide services to customers—or whether the objectives should encourage competition based on services, with competitive providers being given access to the dominant carriers' networks. Some parties submitted that supporting service-based competition (by competitive providers, some of whom do not operate their own network facilities) would likely reduce prices for consumers. Others took the position that supporting facilities-based competition promotes ongoing investments in advanced telecommunications networks and that promoting service-based competition would reduce incentives for carriers to continue to invest in their networks.

We heard differing views on the level of competition in telecommunications markets and the attendant impact on rivalry among service providers, diversity of service offerings, customer responsiveness and price levels for services in these markets. Some parties submitted that there is robust competition in Canada's telecommunications markets. However, others submitted that telecommunications markets are highly concentrated, the level of effective competition is limited, and prices for telecommunications services in certain markets in Canada are too high.

These differences informed the positions of parties on the appropriate focus of economic regulation of telecommunications. A number of parties noted that the current Telecommunications Act is based on a presumption of regulation of rates and service conditions, but that the level of competition in telecommunications markets has evolved to the point where this regulation is generally no longer appropriate. Exceptions were made for a limited set of issues that could be subject to continued regulation, such as accessibility requirements, access to passive infrastructure, public safety and copyright piracy issues.

Some parties proposed a fundamental rewrite of the provisions of the Telecommunications Act dealing with economic regulation. In some cases, parties made specific reference to the 2006 Policy Direction issued to the Canadian Radio-television and Telecommunications Commission (CRTC) by the Governor-in-Council to "…rely on market forces to the maximum extent feasible…" when conducting its regulatory activities in furtherance of the Policy Objectives found in section 7 of that Act. Parties suggested that the content of that Policy Direction be enshrined in the legislation itself.

Others disagreed with the premise that reliance on the operation of market forces in telecommunications markets is sufficient to achieve Canada's policy objectives for telecommunications. They suggested that economic regulation of certain telecommunications markets is needed. For example, some submitted that greater regulation of wholesale telecommunications markets is needed to support service-based competition. These same parties commented at length on the harmful effects on competition and on their own competitive positions arising from the current regulatory process and, in particular, from long delays in resolving disputes and finalizing regulatory determinations.

Broadband Deployment in Rural and Remote Communities

Interested parties highlighted particular challenges in obtaining access to broadband in rural and remote communities (including Indigenous communities) and pointed to the need for ongoing government intervention and collaboration with communities to ensure that all Canadians benefit from digital society.

Parties generally agreed that there is insufficient incentive for private-sector players to make investments that will close the gap between service and price levels in urban centres and areas in the rest of Canada. This is largely due to the lower population levels in these areas and the accompanying lower levels of return on investment that carriers receive. Additional challenges arise in remote regions, particularly in the North, due to climate and terrain. However, some parties suggested that these difficulties may soon be overcome through technological developments, including the deployment of low-earth orbit (LEO) satellites.

Most parties agreed that investments in infrastructure to provide broadband services to rural and remote regions will require continued subsidization. Several parties called on the Government to develop a National Broadband Strategy that would bring together the broadband support programs currently administered separately by Innovation, Science and Economic Development Canada (ISED) and the CRTC, and provide for ongoing, stable funding for broadband infrastructure.

Some communities told us they want to be partners in providing access to telecommunications services for their members. The submissions received highlighted municipalities' interest in ensuring the timely development of telecommunications services to meet their connectivity goals. A few municipalities, including some in rural areas, also want to act as telecommunications service providers for their residents.

Indigenous parties identified the lack of access to broadband infrastructure as a major issue for their communities. They expressed the desire to be involved in the development of broadband networks in their own communities not just as consumers of telecommunications services, but also as owners and operators of those services. Indigenous participants also called for telecommunications services to be developed using a community-based approach rather than a consumer-centred model. We also heard that it is important to enshrine Indigenous treaty and land rights in the legislation and ensure they are respected in the provision of services, and to provide support for Indigenous economic development, employment as well as training and skills development.

Use of Passive Infrastructure to Expand Networks

We use the term "passive infrastructure" to mean structures that can support telecommunications facilities. In many cases, such structures are owned by local authorities or by power, gas or water utilities. These structures include light poles, bridges, water towers and street furniture. (Examples of street furniture include light standards, mail boxes and bus shelters.) Participants submitted that the question of final authority over access to passive infrastructure is an evolving issue as telecommunications networks continue to develop. Interested parties expressed differing views as to whether the legislation should be changed to facilitate greater access to passive infrastructure and differing opinions as to whether such changes would be constitutionally valid.

Carriers and industry associations submitted that there is a need for greater regulation at the federal level over access to public rights-of-way and other passive infrastructure. These parties commented that delays in attaining rights-of-way or high prices for accessing structures will limit the development of advanced networks, thereby preventing Canadians from gaining the benefit of communications services that rely on those networks. A number of parties submitted that the CRTC should have authority to manage this access, including the timely resolution of disputes between land use authorities and carriers.

Regarding wireless deployment, we heard that the deployment of next generation technologies, including 5G wireless networks, will require carriers to construct denser networks with considerably more points of connection than currently exist. Densification will also require greater access to public rights-of-way. In addition, privately-held buildings may serve an important role in supporting network expansion.

However, municipalities and electrical associations submitted that they need continued control over passive infrastructure and rights-of-way, noting that they are responsible for balancing the needs of various users. We heard that electrical associations and municipalities are open to working in collaboration with carriers to expand telecommunications networks. Municipalities noted that they have a long history of resolving the vast majority of infrastructure installations using a cooperative approach. They pointed specifically to the protocol established for the installation of antenna towers as an example of federal-municipal collaboration to govern telecommunications infrastructure.

Indigenous parties stated that they should control the installation of telecommunications networks on their lands, in keeping with their treaty and territorial rights.

Spectrum Management

The development of advanced wireless networks relies on access to spectrum, which is managed by the Minister of Industry on behalf of Canadians. ISED is responsible for both the allocation of frequencies (designating them for certain services) and their assignment to specific individuals or entities.

We heard it is imperative that the spectrum regulator provide timely access to spectrum as communications services continue to develop. Many participants commented that assignment processes will need to be accelerated in future to keep pace with technological change. They also noted that the spectrum regulator will need to balance competing demands for assignment from, as examples, commercial services; public safety and first responders; and defense needs. These competing needs should accommodate satellite services, including the deployment of LEO satellites that may support the provision of broadband services in rural and remote areas.

A number of submissions advocated the introduction of a set of policy objectives into the spectrum management legislation to replace current provisions in the Radiocommunication Act that reference the Telecommunications Act. More specifically, many parties recommended that the legislation direct the spectrum regulator to rely on market forces when managing spectrum and that it should take care to minimize the administrative burden in its activities. Several parties indicated that the spectrum regulator should allow for secondary-market trading and assignment of spectrum rights.

We received a number of comments regarding who should regulate spectrum as well as the potential for combining the Radiocommunication Act with the Telecommunications Act. These are discussed under Theme D.

Network Security and Reliability

We heard that the importance of ensuring security of telecommunications is growing as more and more devices are becoming connected to the Internet. In addition, critical infrastructure and systems are vulnerable to threats carried over telecommunications networks.

We also heard that telecommunications carriers and equipment manufacturers have made investments to address security risks and defend against cyber threats.

Net Neutrality

We heard widespread agreement among public interest groups and the general public that net neutrality principles are important. Many submissions emphasized the need to reflect them in telecommunications legislation.

Submissions were mixed regarding whether legislation should be amended to enshrine net neutrality principles. While some participants indicated that an explicit reference to net neutrality should be made in the Telecommunications Act, others commented that the regime administered by the CRTC under current legislative provisions is already quite robust. Some suggested that the current provisions should apply to resellers of telecommunications services in addition to facilities-based telecommunications carriers. In addition, some submissions noted that there is a risk of being overly prescriptive in legislation, which might risk future adaptability of legislative provisions to the effects of yet-to-be-developed technologies.

Theme B

Supporting the Creation, Production and Discoverability of Canadian Content

Interested parties from the cultural sector, including many associations, acknowledged that the digital revolution has had a profound impact on the creation, distribution, consumption, business models and pricing of content. The majority of parties also emphasized the importance of supporting Canadian audio and audiovisual content in the digital age to preserve and express Canada's cultural identity and sovereignty in all its diversity. To this end, they collectively reaffirmed the importance and relevance of the objectives of the Broadcasting Act. We have organized the parties' proposals into the following topics:

Creation and Production of Canadian Content

The majority of interested parties from the cultural sector submitted that funding for Canadian content is a major issue. The loss of revenue (from advertising and subscriptions) experienced by traditional players such as private broadcasters, radio stations and broadcasting distribution undertakings (BDUs) in favour of new players in the cultural sector, including foreign digital platforms and Internet service providers (ISPs), has prompted most parties to call for equitable treatment for both traditional and new players. They therefore recommended expanding the legislative and regulatory framework for Canadian content funding (for example, Canadian programming requirements and contributions to the Canada Media Fund [CMF]) to include these new players. This could be achieved through a licensing system, binding agreements or regulations with administrative monetary penalties (AMPs). Some parties emphasized the urgency of the situation and called for immediate action, such as the revision of the Exemption Order for digital media broadcasting undertakings, to get new players to contribute in advance of a potential modification of the legislative framework.

A few interested parties, including vertically integrated enterprises and BDUs, submitted that the regulatory burden should be reduced to allow for greater reliance on market forces. Foreign digital platforms commented that they are already investing in production and talent in Canada and contributing to the country's creative ecosystem. Some submitted that funding for Canadian content should come directly from the government rather than being subsidized by industry revenues. However, the majority insisted on binding measures to ensure funding remains available for Canadian content in the face of market failures.

A number of interested parties, in particular content creators and producers, submitted that given that ISPs benefit from increased consumption of audio and audiovisual content online, they should contribute to its creation. These parties would like the legislative framework to be modified to enable the CRTC to require contributions from ISPs and wireless service providers. Other parties, such as ISPs, submitted that requiring ISPs to contribute to Canadian content would be unfair because Internet use is not limited to the dissemination of content. In their view, the contribution of ISPs should be limited to building the networks that provide access to Canadian content. Parties also noted that requiring ISPs to contribute to content funding could have a negative impact on the price of Internet access if it gets passed on to consumers.

Almost all interested parties advocated for equity in the application of sales taxes between Canadian and foreign companies even though this issue is outside the scope of the communications legislative framework. They submitted that this would put an end to the competitive disadvantage currently faced by Canadian companies, which also have obligations with respect to the creation and distribution of Canadian content.

The majority of parties also recommended maintaining Canadian regulations on ownership and control of the broadcasting system while imposing binding obligations on foreign companies to support the creation and distribution of Canadian content. However, a small number of interested parties submitted that they would prefer to see a relaxation of national media ownership restrictions so that Canadian BDUs can access more private funding.

Discoverability of Canadian Content in the Digital Age

Interested parties agreed that there now seems to be unlimited choice in terms of content and that digital platforms employ proprietary algorithms that use mass data to predict user preferences and tailor their offerings. A large number of parties also pointed out that it is becoming increasingly difficult to find Canadian content. As a result, we heard that it is important to them that the new legislative framework address the issue of the discoverability of Canadian content.

Specifically, a number of parties suggested that Canada's broadcasting policy not only set out objectives with respect to the broadcasting and distribution of Canadian content, but also with respect to its discoverability. This could result in digital platforms being required to promote and prioritize content, and/or to hold a minimum number of Canadian programming hours or titles. Many parties also asked for changes to the legislative framework to impose data-sharing obligations regarding the viewing of titles in order to measure the consumption of Canadian content on these platforms.

Some interested parties, including digital platforms, expressed reservations as to the need for discoverability obligations, and some rejected the idea outright. They submitted that it is up to consumers to decide what they want to watch based on their preferences. Digital platforms also highlighted their ability to give Canadian content global visibility.

Diversity of Canadian Content

Many interested parties noted the importance of preserving diversity in the content sector at two different levels: diversity of voices and cultural diversity.

According to many parties, the existence of an independent production and broadcasting sector is needed to preserve a diversity of voices and perspectives given the consolidation of the industry. They therefore called for an explicit commitment to an independent sector in the legislative framework.

Independent producers and broadcasters stated that they would like to receive greater protection from the CRTC vis-à-vis large vertically integrated companies. However, the vertically integrated companies asked for greater reliance on market forces and opposed rules restricting their flexibility to tailor their content offerings, such as rules on content ownership.

Several parties requested the inclusion of objectives regarding content created by women, Indigenous creators, francophone creators, OLMCs and creators from accessibility groups.

Indigenous parties submitted that the legislation should not only preserve Indigenous languages, traditions and culture, but actively promote them. They stressed the imperative of making such content available proactively rather than "as resources become available." They called for more resources and mechanisms to support the funding, distribution and discoverability of programming created by Indigenous peoples. They also expressed a desire to be able to decide on all matters relating to the expression of Indigenous cultures in broadcasting.

The concept of diversity was of particular interest to francophone parties. They stressed the need for a legislative framework that preserves Canada's linguistic duality. Many spoke of the importance of continuing to invest in the creation of French-language content and ensuring its availability and discoverability on all platforms.

OLMCs also emphasized the importance of providing specific support measures for programming produced by OLMCs on all platforms.

Accessibility groups spoke of the importance of ensuring representation in the media of people with visual and hearing impairments. These groups also made recommendations on measures to support original content created by and for members of these groups.

Some interested parties submitted that the responsibility for meeting social and cultural objectives, including those related to diversity, rests with public actors. These parties suggested that the private sector should focus primarily on creating and marketing content that is likely to be successful nationally and internationally. However, other interested parties were of the view that the achievement of social and cultural objectives cannot rest solely on public organizations.

Local News

Many interested parties commented on the devastating effect that the transfer of advertising revenue to digital platforms has had on the Canadian media environment, particularly on the business models of print media, private broadcasters (especially over-the-air television) and, to a lesser extent, the public broadcaster. These parties submitted that this revenue migration is affecting broadcasters' ability to produce and broadcast local news. They emphasized the importance of the survival of local media to the vitality of democratic debate, especially in an era of media consolidation and misinformation.

Since news is often read on digital platforms, print media stakeholders expressed a desire to be able to get data from digital platforms to better understand their audience.

Several parties proposed creating an information media fund to fund local and regional news and information programming on all platforms. However, parties stressed the importance of safeguarding the independence of the media, regardless of the funding program.

Many parties also highlighted the important role played by the CBC/Radio-Canada, provincial educational and cultural broadcasters, Indigenous media, and community television and radio stations in local news broadcasting.

Role of the CBC/Radio-Canada

Many interested parties recognized the fundamental role the CBC/Radio-Canada plays in the creation and distribution of cultural and informational content on all platforms. To ensure it continues to be able to fulfil this role, several interested parties called for the protection of CBC/ Radio-Canada's independence (for example, through more stable funding mechanisms). Parties also requested increased funding for the public broadcaster to levels comparable to funding of public broadcasters in other countries.

Many parties also highlighted the role that the CBC/Radio-Canada plays within OLMC and Indigenous communities. However, Indigenous communities submitted that CBC/Radio-Canada should act as a complement to Indigenous media and not as a competitor. They were of the view that CBC/Radio-Canada's mandate should therefore include a commitment to develop partnerships and share funding with smaller organizations such as Indigenous media.

Private broadcasters also submitted that CBC/Radio-Canada should not compete with them, particularly for advertising revenue.

Finally, some parties called for greater representativeness within CBC/Radio-Canada, particularly from the Indigenous community.

Role of Other Non-commercial Broadcasters

Several interested parties submitted that provincial educational and cultural broadcasters, Indigenous media, non-profit services, and community-based television and radio stations disseminate content that meets cultural and social objectives. In this way, their programming complements the content offerings of the private sector and CBC/Radio-Canada. These parties suggested that these types of broadcasters could play a greater role in providing programming that addresses imperatives other than commercial ones, notably by offering local news and a voice to underrepresented segments of the population. We heard that the legislative framework should recognize and support not just a single public broadcaster, but an ecosystem of public and community services that, taken together, make it possible to achieve the objectives established by Parliament to meet the specific needs of minority and under-served groups as well as of regional and local communities.

Theme C

Improving the Rights of the Digital Consumer

The Internet and digital technology have transformed the social, economic, cultural and civic participation of Canadians, making way for a new type of consumer—one who is engaged as a creator, citizen and a full participant in digital society. However, this transformation also raises the potential for individual and social harm, including damage resulting from the proliferation of misinformation and "fake news." The transformation also means that Canadians must be digitally literate to fully participate in digital society.

We received submissions on the following issues:

Affordability for Low-income Canadians

Competition and overall affordability of telecommunications have been discussed under Theme A.

However, we also heard about the specific issue of affordability for low-income Canadians, including those with accessibility needs. They struggle to afford what are and will continue to be essential communications services; this impacts their ability to participate fully in digital society and exercise their rights as citizens.

Public interest groups noted the importance of affordable access to the Internet for those with low income to allow them to apply for jobs, participate in education, or access government services. Some submissions called on the Government to expand its current low-cost Internet programs and to ensure that all carriers participate in the programs. Other parties recommended establishing a price ceiling for low-income Canadians and free or significantly discounted accessible technology for communications services.

Participants submitted that transparent and stable pricing is important for all Canadians, especially those with low income or accessibility needs.

Accessibility

Some parties submitted that accessibility-related policy objectives should be included in communications legislation to ensure that people with accessibility needs are taken into account when regulating the telecommunications and broadcasting sectors. We received additional suggestions to include accessibility representatives in policy-making, as discussed under Theme D.

Accessibility groups noted that communications tools and mobile applications on smart devices are not only important for them as digital consumers but that they also provide independence and freedom. These groups noted the importance of affordable Internet connections, including mobile data plans, for these tools and applications to function.

Interested parties emphasized the importance of accessibility standards in communications services, including in the provision of audiovisual content. They proposed standards for the provision of services in sign language; accessible websites and picture-in-picture interpretation; and video description. Accessibility groups recommended including obligations to meet accessibility standards directly in communications legislation as well as establishing relevant enforcement mechanisms.

Social harm in a Digital Environment

Digital platforms have created new opportunities for participation in digital society; expanded outlets for the expression of ideas and creativity; and allowed the creation and sharing of user-generated content. However, digital platforms also create new and enhanced potential for individual and collective social harm, ranging from misinformation and fake news to inappropriate or illegal content. There were references to the potential roles and responsibilities of digital platforms in relation to news, information and audiovisual content that may be generated by users or, alternatively, be provided or curated by the platform provider.

Digital platforms holding vast amounts of Canadians' personal data are able to re-use that information in ways that may cause social harm. For this reason, some parties indicated that the digital platforms should be subject to the authority of regulators, including the CRTC, the Office of the Privacy Commissioner (OPC) and the Competition Bureau.

A number of interested parties submitted that communications regulation should have a role in ensuring the provision of accurate, independent and trusted news and information, and that legislation should include a policy objective to this end. Some parties suggested that the quality of online journalism would be increased if standards-setting models similar to those established for broadcast journalism (such as the Canadian Broadcast Standards Council) were to be adopted.

Some parties noted that digital platforms have considerable power regarding what information is presented to Canadians as news and fact. Through their algorithms, digital platforms provide a curation function that is driven by user preferences and the application of processes that are not transparent. These can lead to the removal of credible sources of news and the rapid dissemination of misinformation. Consequently, some interested parties asked that digital platforms be subject to regulatory oversight. Providers of digital platforms disagreed, stating that they were committed to the free flow of information but were also taking steps to stem the flow of misinformation online.

A number of parties commented on the importance of increasing Canadians' digital literacy, and several highlighted that there are numerous programs currently in place for this purpose. However, we heard mixed views on whether legislative changes are needed to communications statutes to promote digital literacy. Some interested parties indicated that the CRTC should be given responsibility for digital literacy and the provision of public education to enhance it. Others indicated that there is no need to include digital literacy in the Acts that are subject to this Review.

Privacy

The OPC highlighted the importance of privacy, noting that consumers need legal safeguards so that they may participate in digital society without having their personal information used in ways that may cause personal or collective harm. The OPC submission also noted that consumers are not in a position to understand how their information is collected, used and shared, which calls into question whether they are able to give meaningful consent regarding use of their data. Other parties submitted that digital platforms should have fiduciary obligations with respect to their users' data.

The OPC noted that data gathered by telecommunications service providers on consumers is particularly sensitive and of increasing use to law enforcement entities. For this reason, care should be taken to provide protection of the data and citizens' privacy when considering data generated from communications activities.

Theme D

Renewing the Institutional Framework for the Communications Sector

We heard a number of perspectives regarding the need for renewal of the institutional framework for the communications sector, including the allocation of responsibilities between the CRTC and the Government.

Submissions centred around the following topics:

Allocation of Regulatory Responsibilities

Currently, regulatory responsibilities for the broadcasting and telecommunications sectors are divided among the CRTC, the Minister of Canadian Heritage, the Minister of Industry and the Governor-in-Council. We heard a variety of opinions concerning the effectiveness of current regulatory authorities and their respective responsibilities. A number of parties commented that the current allocation of responsibilities works well and should not be changed. Some also noted that changing organizational responsibilities would represent a major disruption and, therefore, should not be undertaken lightly or without sound public policy reasons.

Other interested parties proposed realignment of certain regulatory responsibilities and authorities. Some suggested that Canadian Heritage be given greater direct responsibility over the regulation of broadcasting activities. Many also advocated for the reallocation of authority and responsibility for the management of spectrum from the Minister of Industry to an independent regulatory body, with some proposing the CRTC specifically as an appropriate body.

Many parties commented that the legislation currently strikes the right balance between enabling the government to set overall policy direction while maintaining the regulatory independence of the CRTC. However, other parties expressed concern that the powers provided to the Governor-in-Council to issue policy directions and hear appeals of specific decisions in the Broadcasting Act and Telecommunications Act allow Cabinet to undermine the overall policy objectives in the Acts set out by Parliament.

There were differences of opinion regarding the desirability to consolidate legislative provisions governing the communications sector into a single Act. Those who favored maintaining the status quo noted that the objectives of broadcasting are different from those for telecommunications and radiocommunication, and it would therefore be inappropriate to combine the three Acts. Others noted that a large body of jurisprudence exists regarding the current legislative structure and that the existing structure might be weakened by converging legislative provisions into a single Act. In contrast, some parties submitted that a single communications statute would likely be clearer in terms of purpose and easier to understand.

Some interested parties recommended that the Telecommunications Act and Radiocommunication Act provisions be combined, with the result that wireline and wireless communications would be governed by a single Act. A number of parties submitted that there is need for a specialized regulator to deal with complex issues that arise in the telecommunications sector and were of the view that it should be a separate entity from the CRTC and/or ISED.

Regulatory Toolkit and Composition of the CRTC

Some interested parties noted that the CRTC's regulatory toolkit is weaker under the Broadcasting Act than under the Telecommunications Act. For example, the CRTC has no ability to impose AMPs to promote compliance with requirements under the Broadcasting Act. In general, parties suggested that the regulatory toolkit for the broadcasting and telecommunications sectors be aligned.

Parties also suggested amendments to the regulatory mechanisms established in the Telecommunications Act. In this regard, parties indicated that the AMP regimes in the Telecommunications Act should be harmonized.

A number of interested parties spoke to the need for regulatory flexibility to address the speed of change. These parties stressed the need for the regulator to be able to respond quickly to issues as they arise.

Some parties also submitted that there should be additional provisions included in the CRTC's regulatory toolkit that would allow for greater sharing of information and cooperation with other regulators, including the Competition Bureau and the OPC.

We heard a number of suggestions to make the CRTC more diverse. In addition to reflecting geographical and linguistic diversity, some interested parties proposed that the composition of the CRTC include representation from Indigenous communities, OLMC groups, and community TV and radio. Other parties proposed including representatives with accessibility needs in communications regulatory bodies and establishing advisory functions on accessibility in the CRTC as well as in various government decision-making bodies.

Funding for Public Participation in Regulatory Proceedings

A number of parties submitted that current funding mechanisms for participation in proceedings under communications statutes are insufficient, inconsistently applied and overly cumbersome to access. Some parties proposed the creation of permanent, stable funding to allow public interest groups to participate more effectively in regulatory proceedings under all three statutes.

Legislative and Regulatory Framework for Copyright Piracy

In 2018, a number of parties made a joint submission to the CRTC, under the name Fairplay Canada, proposing a regulatory scheme that would require ISPs to block access to sites that were determined to be engaging in copyright piracy. The CRTC dismissed the application on the grounds that it did not have the jurisdiction under the Telecommunications Act to enact Fairplay Canada's proposal. Its decision noted that the issue of copyright piracy may be addressed in the Parliamentary review of the Copyright Act or by this Panel.

A number of interested parties indicated that the CRTC should be given regulatory authority to require ISPs to block access to pirated audiovisual content. However, others disagreed, submitting that the regime proposed by Fairplay Canada could threaten freedom of expression, result in over-blocking of legitimate content and undermine net neutrality.

Some parties suggested that establishing a regulatory offence for copyright piracy similar to that found in section 9of the Radiocommunication Act with respect to satellite programming piracy would be beneficial. However, others suggested that the issue would be better addressed through the Copyright Act.

Next Steps

The Panel was pleased to receive input from Canadians representing a wide range of views and values from diverse groups of interested parties.

The contributions and submissions will be taken into consideration in the work leading to the development of our final report that will be presented to the Government in January of 2020.

Abbreviations

5G
Fifth-generation wireless networks
AMPs
Administrative Monetary Penalties
BDU
broadcasting distribution undertaking
CBC/Radio-Canada
Canadian Broadcasting Corporation/Radio-Canada
CMF
Canada Media Fund
CRTC
Canadian Radio-television and Telecommunications Commission
ISP
Internet service provider
ISED
Innovation, Science and Economic Development Canada
LEO
low-earth orbit (satellites)
OLMCs
official language minority communities
OPC
Office of the Privacy Commissioner
Panel
Broadcasting and Telecommunications Legislative Review Panel
Review
Review of the Broadcasting Act, Telecommunications Act and Radiocommunication Act
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