The Broadcasting Act: Structure and Background

This presentation, prepared and presented by Peter S. Grant, Member of the Broadcasting and Telecommunications Legislative Review Panel, provides a high-level overview of Canada's Broadcasting Act.

Transcription — The Broadcasting Act: Structure and Background

This presentation provides a high-level overview of Canada's broadcasting legislation.

The Broadcasting Act, along with the Telecommunications Act and the Radiocommunication Act, is the subject of review by the Broadcasting and Telecommunications Legislative Review Panel. In this presentation, an overview of the Broadcasting Act will be provided, along and a closer look at some of its key provisions.

On this slide, we present the chronology of the agencies that have regulated broadcasting in Canada. Broadcasting legislation actually dates back to 1932 when the CBC was created. But only in 1958 was an independent agency created to regulate broadcasting in Canada. That agency was called the Board of Broadcast Governors. But in 1968, a new Broadcasting Act came into force which created the Canadian Radio‑Television Commission and gave it more extensive powers over broadcasting.

Then, in 1975, the legislation was amended to give the CRTC jurisdiction to regulate the telecommunications carriers. The name of the agency was changed to become what it is today, namely the Canadian Radio‑Television and Telecommunications Commission, but we still call it the CRTC.

In 1991, a new Broadcasting Act came into force. That legislation added some significant provisions and is the legislation we have today.

As you can see from this slide, the 1991 Broadcasting Act is divided into four parts. Part I deals with broadcasting policy and the application of the Act to various entities. Part II sets out the objects of the CRTC and its regulatory powers. Part III deals with the CBC powers and functions. And finally, Part IV deals with some consequential amendments.

We now turn to an important preliminary question, namely, what is "broadcasting"? It's a defined term in Section 2 of the Broadcasting Act and there are four things about the definition that are worth noting.

The first point to make is that broadcasting is defined to be a type of telecommunications. That's the broader term and broadcasting is a subset of telecommunications.

The second point to make is that broadcasting is defined as "any transmission of programs by radio waves or other means of telecommunication for reception by the public." Here we should note that broadcasting is not limited to transmission by radio waves, which we sometimes call "off the air" transmission. If a program is transmitted to the public only over wires, cable or fibre, it can still be treated as broadcasting.

The third point to make is that the definition of broadcasting excludes any transmission of programs that is made solely for performance or display in a public place. So if a prize fight is transmitted to a theatre or arena where the public can buy tickets to see it, that would not be considered broadcasting under the statute because the performance is in a public place.

Finally, the definition of the word "program" excludes visual images that are predominantly alpha-numeric text. So that means that if a newspaper sends its stories in purely text form to the public that would not qualify as broadcasting.

So now we know what broadcasting is. But if we want to regulate broadcasting, what policies should the regulator be asked to apply? That takes us to Section 3 of the Broadcasting Act, which is one of the most important sections of the legislation. Section 3 provides a list of various policies that the CRTC is to try to implement as part of its regulatory mandate. There are some 20 different policies listed, covering a whole range of topics—far too many to put on this slide. But here are four quite important policies:

  1. First, that the system should be owned and controlled by Canadians.
  2. Second, that the system should safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada.
  3. Third, that each element of the system should contribute in an appropriate manner to the creation and presentation of Canadian programming.
  4. And finally the importance of the role of CBC.

Section 4 of the Broadcasting Act deals with how the Act is to be applied. The first point to note is that it applies to undertakings carried on "in whole or in part" within Canada. So that means that the Act can apply to foreign-based broadcasting undertakings if part of their operation or undertaking is carried on in Canada. For example, if a foreign entity acquired Canadian program rights, sent its signal into Canada, and solicited subscribers or advertising revenue in Canada, it could be caught by this definition.

The second point is that the Broadcasting Act does not apply to any telecommunications common carrier when acting solely in that capacity.

In that context, the Supreme Court of Canada ruled in 2012 that internet service providers are telecommunications common carriers and not broadcasting distribution undertakings, so they are not covered under the Broadcasting Act. Instead they are subject to regulation under the Telecommunications Act.

Section 5, subsection 2, of the Broadcasting Act deals with regulatory policy. Most of the policies that are set out in this section are simply duplicates of the statements already in Section 3. But there are two concepts here that are new. One is paragraph 5(2)(f), which is that the Commission should not inhibit information technologies. And then there is paragraph 5(2)(g) which says that the Commission should be sensitive to administrative burden. So these are regulatory issues that the Commission is also to take into account.

Now we come to Section 7 of the Broadcasting Act, which permits the government to issue general policy directions to the CRTC. Since 1991, there have only been two policy directions that have been issued to the Commission under this section. One deals with direct-to-home satellite distribution and the other with direct-to-home pay-per-view programming.

Section 9 of the Broadcasting Act sets out the general licensing powers of the CRTC and as you would expect, it allows the Commission to put conditions on the licenses as it deems appropriate to implement the broadcasting policies set out in Section 3. Broadcasting licences can be issued for a period up to seven years.

An important part of Section 9 is Section 9(1)(h), which allows the CRTC to require broadcasting distribution undertakings—that is, cable, satellite or fibre distributors —to carry programming services specified by the Commission. Over the last few years, the Commission has issued some twenty distribution orders telling the distributors that they must distribute particular programming services, ones that have a special importance to Canadians and need to be put on the basic service.

Section 9(4) sets out the exemption power of the CRTC. An exemption can be on such terms and conditions as the Commission deems appropriate.

The Commission has issued many exemption orders, but one that's interesting is the Digital Media Exemption Order, which was first issued in 1999 and updated in 2012. This exemption order applies to internet or online broadcast services.

There is also an exemption order for cable operators with less than 20,000 subscribers. It has a long list of conditions to it, which basically replicate the licensing conditions that are given to the larger cable operators.

Section 10 of the Broadcasting Act sets out the power of the CRTC to enact regulations. The Commission has issued separate regulations for AM and FM radio stations, TV stations, discretionary programming services, and broadcasting distribution undertakings. The regulations are of general application and cover such matters as program logs, Canadian content quotas, and other issues.

Section 12 of the Broadcasting Act sets out the power of the CRTC to issue mandatory orders. These orders can be then filed with the Federal or Provincial Courts under Section 13 and enforced by contempt proceedings. So they permit the Commission to enlist the support of the Courts to enforce its regulations or licence conditions.

Now we come to Section 15 of the Broadcasting Act. This allows the government to require the CRTC to hold hearings or make reports on any matter. Since 1991, the government has made 14 requests of this kind. A few of them are listed on the slide. For example, the Commission was asked to report on the provision of French language services in French language minority communities. It was asked to repoprt on the provision of multi-cultural services. And most recently, the Commission was asked to hold hearings and make a report on future distribution models for Canadian content. It issued its report on May 30, 2018.

Sections 16 to 21 of the Act set out the Commission's powers regarding hearings.

In particular, Section 20 gives the commissioners who actually sit on a hearing the power to decide the matter.

However, the CRTC can also decide matters on a collegial basis, involving commissioners who did not go to a hearing, if no hearing panel was appointed to determine the matter.

Sections 26 to 30 of the Broadcasting Act set out the powers of the Federal cabinet to affect CRTC decisions. For example, the government has issued criteria for eligibility of broadcasting licenses, which requires Canadians to own and control the broadcasting undertaking before the Commission can give out a license. The federal cabinet can also set aside CRTC licensing decisions or refer them back for further consideration.

Sections 35–71 of the Broadcasting Act establish and govern the Canadian Broadcasting Corporation.

And it is interesting to note that the CBC president, chairperson and board of directors are all appointed by the Federal cabinet.

So that brings us to the final slide. This has been an overview of the Broadcasting Act at a relatively high level. As noted, the language in the Broadcasting Act dates back to 1991, over 25 years ago.

In that period, the statute has provided the legislative framework for the regulation of broadcasting in Canada. The Broadcasting Act has been an important component of the government's cultural policy tool kit.

It will be the task of the Broadcasting and Telecommunications Legislative Review Panel to review the legislation to address the questions posed by the government and ensure that the legislation is fully up to date.