Canadians have long had a deep fascination with communications which stems, in part, from the geographic and physical situation of Canada, a very large country which spans many time zones and features difficult (and cold) terrain. Most Canadians live on a narrow “people’s belt” along the Canada – U.S. border. This proximity to the U.S. has a profound influence on Canadians and has given rise to a fixation with concerns related to the preservation of Canada’s bilingual and bicultural character.1 These concerns are, in turn, reflected in some of the unique telecommunications and broadcasting regulatory policies summarized below.
Canada’s communications environment has been in a rapid state of transition, deregulation and increased competition since 1992. In Canada, both telecommunications and broadcasting are constitutionally under the legislative authority of the federal government as they are considered fields of national interests. The primary legislative requirements for communications regulation are set out in the Telecommunications Act, the Broadcasting Act and the Radiocommunication Act. The government departments and agencies with key responsibility for administering these areas are the Canadian Radio-television and Telecommunications Commission (CRTC) – the regulatory authority for all service providers in the telecommunications and broadcasting sector, Industry Canada – which is responsible for managing and licensing spectrum to wireless carriers and setting telecommunications policy, including equipment certification guidelines, and Heritage Canada – responsible for cultural issues and broadcasting policy. Four unique aspects of the communications regulatory regime stand out in particular and are at the centre of current policy debates/considerations:
- The distinction between content and carriage which is evident in the bifurcated legislative provisions but is increasingly difficult to maintain as technologies and businesses converge;
- The foreign ownership restrictions for telecommunications carriers (entities that own or operate transmission facilities) and for broadcasting companies;
- The relaxed regulatory treatment for telecom service providers that are not telecommunications carriers;
- Current regulatory exemption for new media services.
The CRTC has adopted a policy of forbearing refraining the regulation of many aspects of the telecommunications industry. Notwithstanding this forbearance, telecommunications service providers may be subject to some ongoing regulatory obligations as a reseller (such as the requirement to register, obtain a licence for the provision of international services and pay contribution). The Canadian communications regulatory and policy environment is constantly evolving. Legislators are struggling to keep up with the policy and practical demands posed by new technologies and new service offerings. The foreign ownership restrictions, particularly in respect of telecommunications as distinct from broadcasting, have been the subject of much review and debate, including four separate reports over the past few years. Legislative amendments to the Telecommunications Act, relaxing foreign ownership and control requirements, were introduced in 2012 for those companies with a limited market share — this may open new opportunities for investment and capital.
1. Siegel, Arthur, Politics and the Media in Canada, McGraw-Hill Ryerson, 1996, Toronto.