Second reading of Bill C-18, Online News Act

By: The Hon. Andrew Cardozo

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Hon. Andrew Cardozo: Honourable senators, I was not planning to speak at the second reading of Bill C-18, but I thought it would be useful to provide you with a perspective on how the Canadian Radio-television and Telecommunications Commission, or CRTC, works so that you can make an evaluation of its abilities and shortcomings. I hope in this small way I can contribute to the discussion. For those who know a lot of this information, I apologize.

I have entitled my speech “12 things you want to know about the CRTC when evaluating Bill C-18.”

At the end I will share my thoughts about the issues in the bill that I would like to focus on once we get to committee.

As I have mentioned before, I spent six years as a national commissioner at the CRTC. It is one of those agencies where you can take the person out of the CRTC, but you can never take the CRTC out of the person. It is a fascinating agency that affects the everyday lives of Canadians so directly, which results in there being a long list of alumni who keep a watch on the agency or find ways to keep in touch.

My ways of keeping in touch were to teach media regulation at Carleton University; to be a member of the Canadian Broadcast Standards Council, the non-profit organization that addresses complaints about offensive content on radio and television; and, from time to time, to guide people interested in participating in the process.

Here are the 12 points I would like to share with you:

One, the CRTC is established by the Canadian Radio-television and Telecommunications Commission Act, which describes the aims and structure of this quasi-judicial agency in brief. The two main acts that the agency implements are the Telecommunications Act and the Broadcasting Act, the latter of which will be overlaid by the online streaming act, Bill C-11, should that become law. There is other legislation that is relevant too, such as the Canadian Charter of Rights and Freedoms and the Official Languages Act.

Two, while the CRTC does allow for 13 commissioners, both the Harper and Trudeau governments have kept the number at 9, there being a chairperson, two vice-chairs and six regional commissioners. All members are appointed by the Governor-in-Council, that is the federal cabinet, following an open application process.

Appointments are for a maximum of five years, and appointment dates tend to be staggered so there is always a combination of experienced and new commissioners at any given time. They come from a variety of backgrounds, often with experience in some aspect of broadcasting or telecommunications. Once those appointments are made, commissioners and the commission operate at arm’s‑length from the government, taking its direction from the relevant legislation that it has to implement. The biography and length of the term of each commissioner are listed on the CRTC website.

Three, having mentioned the arm’s-length aspect, I need to mention that the cabinet does have the ability to issue broad directives to the commission from time to time, as they did earlier this week, directing the CRTC to take a series of measures to advance competition in telecommunications. The cabinet, however, does not have the ability, for example, to award a licence to a particular entity, which really goes to the reason for setting up the arm’s-length agency in the first place. The thinking was that you would not want cabinet ministers picking who got a licence and who didn’t.

Four, there are some 650 public servants who work for the commission, and most have considerable expertise in areas of policy that the agency is responsible for. Some are long-term employees with deep experience, while others are recruited from the industry or consumer groups to bring in current perspectives from the outside world.

Five, the commission usually makes about 400 decisions per year. That used to be about 1,000 a year when I was there some 20 years ago, but this suggests that they have been successful in reducing the level of regulation, allowing more flexibility and delegating to commission staff the ability to render more administrative decisions. My sense is that while they have forgone a lot of minor issues, the big issues are getting bigger and more complex.

Six, the nine commissioners make all the decisions together based on online proceedings — or what we would call “in‑writing proceedings” — with the public, unless a panel of a smaller number of commissioners is struck for in-person hearings. These hearings are only struck for policy hearings or some of the major and more competitive issues, and they comprise perhaps 1% of the decisions that are made by the CRTC. For the most part, it is in-writing proceedings that are decided on by all commissioners.

Seven, just about every weekday the commission issues two kinds of announcements under the page entitled “Today’s Releases.” The first kind are invitations to the public to comment on applications before them, and the second are the decisions that have been made. I think this makes it one of the most active websites in the Government of Canada.

Eight, every decision is made on the basis of a public process, which means applicants have to lay everything out for the public to see; in addition, all comments, be they for or against the applicant, are made public. The commission can only use information that is on the public record to make a decision.

I should tell you when I started I found it hard to get used to the process because my usual practice would be to grab for every kind of information I could find. Indeed, if I wanted to insert anything else, I would have to put it on the public record at the beginning of the proceeding.

Sometimes the commission will include internal or external research that has been prepared for the particular proceeding or point to other existing publicly available information elsewhere. This is all designed to avoid any private discussions or secret dealings with applicants. On rare occasions, some competitive commercial information may remain confidential.

That having been said, the discussions among commissioners and staff in determining an outcome once the hearing is over are all confidential or in camera. I suppose that is to make sure that everyone can be open and frank, much like cabinet or judicial documents and discussions. The way this process works is that the staff prepare an analysis of the issues and they recommend a decision or decisions to the commission members. Sometimes the commission members will accept that advice, and other times they will accept some part of it or reject it completely and go in a different direction. The staff still provides a very professional set of information and analysis to the commissioners. It is the commissioners’ responsibility to make the final decision.

I have to tell you that these internal documents were some of the most analytical, professional and interesting documents I read while I was there — or perhaps ever have read — and I regret that they do not see the light of day beyond the commission building.

Therefore my suggestion would be for these documents to be made public after a decision is made, in whole or in part, so that the public can read these really comprehensive analyses and, in so doing, advance greater transparency on how decisions are made.

The tenth point is that there is financial assistance available to intervenors, be they individuals or non-profit organizations, which allows the CRTC to balance out the well-financed interventions by the big corporations with the voices of ordinary Canadians.

Point number 11 is that the CRTC has a range of policies and types of decisions. This is, “What does the CRTC do? What do they put out?” On the broadcast side, it has made decisions to create a suite of policies to address, for example, television broadcasting in Canada, campus radio, competition across the country and in small markets, French-language broadcasting, gender and diversity portrayal, Indigenous broadcasting and online broadcasting. The decisions can also be on licensing applications after an application process.

On the telecommunications side, the decisions address efficient telephony, the internet, competition, affordability and consumer rights. In addition, the CRTC makes its own regulations on a wide range of issues.

Finally, point number 12 is that the commission has also delegated outward some of its responsibilities while maintaining oversight so that the industry or communities have more of a direct say. Those include the management of funds for program development that are funded by cable and satellite companies, for example, and then managed by non-profit organizations, such as the Canada Media Fund. They operate at arm’s‑length from the commission but implement the broad directions to advance made-in-Canada content. It is often called “Canadian content,” but I prefer to call it “made-in-Canada content” because it is really a cultural, employment and industrial policy.

When it comes to complaints, the CRTC has authorized self‑regulated processes on the broadcast side to manage public complaints regarding offensive content and on the telecommunications side is a process to address issues related to price and cost.

I will give full disclosure: I’ve been a volunteer with the Canadian Broadcast Standards Council for several years, and I am currently listed as an adjudicator and chair of the nominations committee. For the record, I asked the Senate Ethics Officer for guidance as to whether I can continue in this role. Again, I want to underline that it is a volunteer role, and I have no ownership or connection to any broadcasting company.

There is obviously a great deal more one can say about the CRTC and what it does, but I thought those 12 points are the most relevant, directly and indirectly, to our consideration of Bill C-18.

Allow me now, please, to make a few observations about the bill. This bill, like many others, presents a conundrum, and perhaps that is not unusual in lawmaking. I have been a regulator, as I’ve just talked about, and I believe strongly in the benefits that regulation can bring, but I’m also very aware and concerned about unnecessary regulations or overregulation.

That said, I think the risk of doing nothing to help newspapers in this new world of powerful and ubiquitous online media is very concerning. Already, far too many newspapers have folded, and the future of this medium sits on a knife’s edge.

This is about the rights of people to be informed and entertained by and about Canadians. It is about our democracy. Just as we marked Flag Day yesterday, I’m proud of our Canadian broadcasting, Canadian services and Canadian corporations that are always at risk of being gobbled up by American and other worldwide corporations.

In my view, those who disagree with the bill need to explain what will happen without such legislation, or perhaps they can outline a realistic alternative. To date, I’ve not heard one, but I’m certainly all ears.

I would also like to hear more from the CRTC as to how they will implement this law, which will, in effect, be a new business line for them.

With that, colleagues, I will say that I’m favourably disposed to Bill C-18, but I’m keeping an open mind at this stage. Thank you.

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