Senate Begins Consideration of Bill C-11

The Senate has now begun an unusual “pre-study” of Bill C-11, the very controversial bill designed to force the internet into the broadcasting framework, and to update the Broadcasting Act and, in the process, give enormous new power to the CRTC. Michael Geist has covered this in terrific detail.

Today, June 22, 2022 he and the Hon. Konrad von Finckenstein, Q.C. testified before the Senate on Transportation & Communication. The video is available here.

Konrad von Finckenstein is a long standing legend in the Canadian public service. He was the lead counsel for the Canada/US Free Trade Agreement in the 1980’s, the Commissioner of Competition, a Federal Court Judge, and the Chair of the CRTC. Nobody else in Canada has such a remarkable breadth of knowledge, experience and policy acumen. He is still very active and contributing in the policy space, e.g. here with Jim Mitchell on May 4, 2022 on Bill C-11.

So, his testimony today was and will be very important. Here is the text of his speaking notes (he was only permitted six minutes) and his Annex, which details five specific amendments included below for convenience:

Annex A

I

Clause 2 of the bill is  amended by adding the following subsection 2(4)

Exclusion- Minor Online Undertakings

(4) This Act applies only to on line undertakings which have more than 100 000 subscribers in Canada or revenue in excess of 100 million from Canada.

II

Clause  4 of the Bill is amended by  adding the following subsection 2.1

Limitation on Regulations

2.1 Regulations made under sub section 2 (b)

i)                 apply to on line undertakings with paid subscriptions or embedded advertising that transmit, both their own or commercial content and user generated content, and   

ii)               must be constructed in such a manner that user generated content is not affected.

III

Clause 3(2) of the bill is amended by adding the following :

(2.1) Paragraph 3(1)d)(i) of the Act is amended by adding the following:

(i.1) reflect and be responsive to the preferences and interests of its audiences;

(i.2) to the extent possible rely on market forces to ensure that Canadians obtain the programming of their choice;

IV

Clause 13 of the Bill is amended  by adding  the following subsection  2.1 to section 11 of the act

2.1 For greater certainty

2.1 Conditions imposed or regulations made by the Commission regarding on line undertakings pursuant to sections 9.1, 10 or 11

1) shall

a)     not compel on line undertakings to change the methods by which they ascertain viewer’s choice

b)     respect viewers choices and leave them unaltered

2) may however require on line undertakings to offer Canadian program alternatives as an addition to viewers’ choices

V

Clause 14 of the bill is amended by adding the following after s.11.1 (5)

Eligibility to Benefits

(5.1) Where a foreign owned online undertaking is required pursuant to section 11.1 to pay an expenditure to a person or organization, or into any fund, that undertaking shall be eligible to the benefits available from any such person, organization or fund as if it were Canadian owned and controlled.

Today's hearing was off to a great start - and the Senate will hopefully provide the sober, second and thorough democratic consideration and necessary revision to the proposed legislation that Minister Pablo Rodriquez has denied in the House of Commons.

HPK

 

CBC CRTC Licence Renewal Hearings Postponed - Curiouser and Curiouser

There has been another Friday afternoon summertime Ottawa stunning announcement. This is from CRTC and it postpones the CBC licence renewal hearings:

This decision was made for two reasons. First, it was made further to a request by the Quebec English-language Production Committee (QEPC) for the same data that had been available for the group-based licence renewals for private English-language television, held in April 2011. The Canadian Media Production Association and the Documentary Organization of Canada supported the request.

Second, today the CBC/SRC advised that the federal government has not yet established its future operating budget. The CRTC believes it would be inappropriate to impose licence conditions given this uncertainty.

Consequently, the CRTC has decided to postpone the renewal hearing until June 2012. A revised notice of consultation will be issued shortly with new procedural dates.

This provides few answers and raises many questions. The original announcement of  the September, 2011 hearing and the schedule was also a Friday afternoon summer announcement not even a month ago on June 17, 2011 with a requirement for submissions to be filed by July 18, 2011. Those submissions are presumably almost finished under a very difficult timeline in mid summer - and may now have to be substantially reworked. Those in the arts community, who are major stakeholders here,  have very little resources to spare and hopefully the work now done won’t be wasted.

One clearly interesting aspect of all of this is that Konrad von Finckentstein, the current Chairman of the CRTC, may not even be there in June of 2012. His term is due to expire on January 24, 2012 and it is not known if he will be reappointed. His departure, if this happens, and the choice of his successor could have a profound influence on the work and even the role of the CRTC. This is a crucial time for the CRTC.

It is also a crucial and possibly even existential moment the CBC. The latter has some important critics in the private broadcasting realm with an openly declared agenda. Even its long loyal listeners and viewers are in many cases disposed these days to a “tough love” approach. The Government is in a cut back mode and the $1.1 billion annunal subsidy is a juicy target in the eyes of many. The term of its current President, Hubert Lacroix, is due to expire at the end of 2012. Under his watch, there has been no apparent change in direction from the controversial changes that have been and continue to be implemented on CBC TV and Radio.

The CBC has not had a full license hearing at the CRTC  for more than a decade. Here’s the WireReport report.

This is a classic Ottawa moment. Things seems to be getting curiouser and curiouser.

HK

PS - curiouser and curiouser indeed. Just tweeted about two new Postmedia stories re Konrad & CRTC:

Two @sarah_schmidt_ stories: "Outgoing CRTC head’s tenure ‘a mixed bag’: former commissioner" http://bit.ly/oCXcW3 & http://natpo.st/pljW5j

PS - I think that the headline writer's reference to "outgoing" must have been to KvF's personality... 

Von Finckenstein on Throttling

Here is an amazing interview with Konrad von Finckenstein, the Chairman of the CRTC, with Jesse Brown of Search Engine, a remarkable program that was CBC's loss and is TVO's gain.

Mr. von Finckenstein answers Jesse's questions about last week's controversial CRTC Net Neutrality decision - or Indecision as I called it, since it essentially confirms the status quo, puts off the likelihood of any real change by years and shifts the onus on consumers to lay complaints.

I don't have time now to comment on the questions or answers in detail. I hope that there is eventually a transcript published of this.

But this much can be noted. , without any value judgment on my part. It is extremely unusual in Canada - or even the USA or UK - for courts to defend or even explain their own decisions. The decision of a court is expected to speak for itself. Canadian judges rarely speak in public, except on very general issues. They normally avoid any reference to specific cases, especially recent ones and particularly ones that they have been involved in deciding. While the culture involving tribunals may differ somewhat from that of Courts on the issue of “speaking out”, still Mr. von Finckenstein's interview is quite remarkable and unusual in terms of its candour, content and timing.

It is certainly a “must listen” for anyone who cares about the internet or Canadian governance.

HK

PS - gotta love the internet! There's now an obviously unofficial transcript posted by one Bob Jonkman on his blog. Unofficial but helpful. Can't vouch for accuracy but here it is.

And here's an excerpt that's very revealing as to whether we can expect any improvements anytime soon:

08:24 JB: Bell and Rogers, they’ve come out saying that they feel that they’re already in compliance with these rulings. This, this ruling changes nothing, that they say they’re fine with it because they’re already doing what you suggest.

08:35 KvF: I hope, hope that’s true. I hope that’s true. We shall see. You know, if, uh, you, for instance, uh, advanced technological user, and we, let’s assume for argument’s sake you’re a client of Rogers find they’re not, then, then first of all you going to go on the Web site and see who’s the in, uh, apply internet management traffic practices, or have they been, perhaps they’ve been described there, and does it say what the effects of those are. If they aren’t, and you find out they applied them anyway what you going to do? You’re going to launch a complaint and we will look into it. On the other hand, if they are exactly doing what they’re saying, then wonderful, and then we have total compliance, which is the whole idea.