Canada's communications future: Time to act

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Final report

January 2020

Letter to the Honourable Minister of Innovation, Science and Industry and the Honourable Minister of Canadian Heritage January 29, 2020 Dear Minister Bains and Minister Guilbeault, On behalf of the members of the Broadcasting and Telecommunications Legislative Review Panel, I am pleased to submit to you our final Report with recommendations on modernizing the legislation governing Canada's communications sector. This Report is the product of a review of Canada's communications laws including the Broadcasting Act , the Telecommunications Act , and the Radiocommunication Act . This is the first time that the three statutes are reviewed together in a comprehensive and integrated fashion. Therefore, Canadians can be confident that the legislative framework is a unified whole, relevant in the digital age. As an independent panel, we were given the freedom to think broadly and openly about how best to build communications legislation for the future, and we are grateful to the government for this opportunity. Our Panel knew that we had to think big and consider what would serve Canadians today and years into the future. We feel strongly that, while our laws need to respond to the issues of today, a lasting legislative framework must be resilient, flexible, and adaptable to the unforeseen but inescapable changes of tomorrow. We believe that our recommendations will provide policymakers and regulators with the legislative framework and regulatory tools necessary to realize the promise of communications technologies. The single most important message to convey on behalf of Canadians is one of urgency. I encourage your government to move promptly to consider this Report and engage with Canadians to implement the necessary changes to ensure that Canada is positioned for success. It has been a pleasure and a privilege to have travelled across the country and met with a wide range of stakeholders, governments, experts, and members of the public. They hosted us in their communities and territories, and we appreciate this. This Report has been greatly influenced by their views and the perspective of those who responded to our Call for Comments on how legislation should be updated to reflect the rapidly changing environment. I would like to thank everyone who participated in the consultation process. I would like to recognize and thank my fellow panelists Peter Grant, Marina Pavlović, Monique Simard, Monica Song, and Pierre Trudel for their expertise, their passion and their unwavering determination and commitment to address the issues and questions posed in our Terms of Reference. Hank Intven also brought his in-depth expertise and experience to our work during his time as a panelist, and I would like to extend my appreciation for his contribution. I would also like to thank the distinguished team of advisors who assisted the Panel in this process and whose wise counsel and advice was appreciated and considered. The Panel was fortunate to have received the support of the Broadcasting and Telecommunications Legislative Review Secretariat. They are an extraordinary team of public servants whose contributions enriched the development of the Report and ensured its successful completion. They were aided along the way by a team of enthusiastic and bright students. I would like to highlight the leadership of Helen C. Kennedy and James Nicholson in their role as co-leads as well as Special Advisor Kelly Beaton and thank them for their invaluable efforts, encouragement, and support throughout this process. Finally, on a personal note, I would like to thank you for your confidence in my leadership. It has been an honour to serve Canadians on this critically important matter. Sincerely, Janet Yale

Chair

Broadcasting and Telecommunications Legislative Review Panel

Table of contents

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Overview

Our Panel was tasked in June 2018 by the Minister of Innovation, Science and Economic Development (now the Minister of Innovation, Science and Industry) and the Minister of Canadian Heritage to review Canada's decades-old communications legislative framework.

This review is taking place at a time of unprecedented and fast-paced change. In this dynamic environment, we are taking a broad view of the communications landscape while responding to the specific questions posed to us in the Terms of Reference. We view Canada's communications legislation as a critical part of an ecosystem of legislative frameworks and regulatory regimes which must work together to address the issues on the minds of many Canadians – whether it be affordability, economic competitiveness, cultural sovereignty, accessibility, consumer rights, or privacy and online safety.

To capture this broad thinking, we focused on four themes:

Reducing barriers to access by all Canadians to advanced telecommunications networks

Supporting the creation, production and discoverability of Canadian content

Improving the rights of the digital consumer

Renewing the institutional framework for the communications sector

These themes informed our Call for Comments – issued in September 2018, kicking off our engagement and outreach with stakeholders – as well as our What We Heard Report released in June 2019. They are reflected in the body of this Report and our recommendations as well.

Our learnings from Canadians have been top-of-mind as we formulated our recommendations for change. Our extensive engagement with Canadians from a diverse cross-section of communities, including accessibility groups and official language minority groups, helped us consider our task in the context of the daily realities Canadians face. And it reinforced the pressing need for legislative reform.

The issues raised by and on behalf of Indigenous Peoples are particularly important, as Canada continues on the path of Reconciliation. We met with several leaders of Indigenous Nations and members of Indigenous communities, including from Northern locations. They took the time to share their valuable knowledge and insights about how we might make progress on communications issues as they affect Indigenous Peoples and communities.

We recognize that our recommendations will need to be understood and implemented in the context of a range of other Indigenous-specific policies and initiatives related to Canada's colonial past and Reconciliation. There are many matters between the federal Crown and Indigenous Peoples and their governments now in play, and we want to emphasize the importance of communications issues in that context. Our work in this area should be seen as only a first step. We encourage the government to continue to engage with members of Indigenous Peoples and communities to ensure that their communications needs continue to be appropriately addressed.

Our vision

Our work is firmly rooted in an overarching vision for the legislative framework: one that reaffirms Canada's sovereignty, supports our democratic values and inclusivity, and aims to realize the promise of advanced technologies for the benefit of Canada's economy and future prosperity, and Canadians as citizens, users, and creators. All Canadians deserve to live a connected life: to connect with ideas, opinions, content, news and information, people, cultures, services and economic opportunities locally, nationally and globally. And to do so in a trusted environment.

Overall, we have put forward a comprehensive set of recommendations for a modernized communications legislative and regulatory framework that would better prepare the country for an era of constant and rapid technological change. In this new regime, all undertakings, including international online platform providers not currently covered, would contribute fairly and proportionately to Canada's national objectives, whether with respect to cultural policy or the goal of universal broadband connectivity; users would be better served and their interests protected; the roll-out of advanced networks would be accelerated to spur innovation and provide affordable services to Canadians.

Digital communications technology is not new. What is different and challenging is the new network environment in which everything is connected and cognitized. Traditional approaches to regulation are no longer enough; lines of business and activities, once siloed, have blurred. New areas of risk have emerged. These issues must all be addressed.

Economic prosperity increasingly depends on two imperatives: first, investment in high-quality, safe and secure telecommunications networks; second, the capacity of businesses to take advantage of this infrastructure and new technologies to adapt their business models, to innovate and to capitalize on new opportunities at home and abroad. In this context, a new framework must safeguard against anti-competitive behaviour that erects barriers to innovation or compromises affordability to Canadians, while ensuring the safety and security of telecommunications infrastructure.

Culturally, the framework must ensure that Canada's creators continue to have the means for Canadian stories to be told and discovered in a world of so many choices – at home and on the world stage. And the national public broadcaster must be relevant and act as a strong Canadian cultural anchor in the face of technological change, changing viewing habits and evolving business models in the sector.

Like governments and citizens around the world, Canada must address the way in which communications technologies and online platforms may threaten democracy and civic participation. More than ever, Canadians need independent, trusted, accurate and diverse Canadian sources of news.

Behind many of the technologies Canadians have come to rely on are globally dominant online platform providers who leave users with little power or control to negotiate terms or conditions of service. And most platform users are sharing massive amounts of personal data with little awareness of how it is being or may be used. In doing so, Canadians are accepting an implicit trade-off: permitting the use of their personal information in return for the convenience and personalization of online services.

Big Data – the result of the massive amounts of personal information collected through this exchange – is creating tremendous value for the online platform providers. Yet, in the current environment, there is little control over the ways in which this personal information may be manipulated or shared, and little power to derive benefits for Canadians from this value.

Online platforms have also created forums that enable the dissemination of harmful content, fake news and disinformation, and violent and extremist content. The question of whether and how domestic and foreign technology companies should take responsibility for harmful content on their platforms must be addressed.

Simply put, Canada and its leaders have to act now to address these challenges and realize the promise of advanced communications technologies. Canada and its leaders need to get this right – the nation's cultural and national sovereignty, economic prosperity and democratic values are at stake.

Our key recommendations

Bringing all media communications entities into the act

At the heart of our recommendations is a new model which recognizes the realities of a borderless, online world: one in which Canadians now access media content based on what is relevant to them, not the means of delivery or the nationality of the media content service provider; and one in which service providers compete directly and actively to attract Canadian audiences and benefit from Canadians' subscription revenues, advertising revenues and personal information. This new model would bring all those providing media content services to Canadians – whether online or through conventional means, whether foreign or domestic, whether or not they have a place of business in Canada – within the scope of the Broadcasting Act and under the jurisdiction of the CRTC.

By media content, we mean audio, audiovisual as well as news content delivered by means of telecommunications. Historically, news content was only regulated by the CRTC if it was delivered through licensees such as radio and television stations, and specialty news services. Canadians are increasingly accessing news content online, which now consists of a mix of audio, audiovisual and text; so we have modified our definitions accordingly.

Our new model is platform agnostic and technology neutral. It focuses on the activities being carried out and establishes consistent obligations to support Canadian cultural policy for all media content undertakings involved in similar activities.

To implement this model, a new registration regime would be created, to be administered by the CRTC. Under this approach, any media content undertaking with significant Canadian revenues and delivering media content by means of the Internet would be required to register. With this registration requirement, Canada's policy and regulatory model would no longer be limited by an increasingly out-of-date reliance on licensing as a technique for regulation. This registration regime would apply to both foreign and domestic undertakings on the Internet. Those involved in a media content undertaking by traditional means would continue to be licensed under the Act but under an increasingly flexible regime.

As it does today, the CRTC would have a broad power to exempt in instances in which regulation is neither necessary nor appropriate to achieve cultural policy objectives.

Those who benefit from accessing our market – both licensees and registrants – should have obligations to support Canadian content. Specific requirements would vary depending on the activity being conducted. The Act would differentiate among the following activities:

Curation: the provision of a service for the dissemination of media content over which the service provider has editorial control. This includes traditional Canadian programming services, as well as online streaming services, such as Amazon Prime, Crave, Netflix, Spotify and illico.tv.

Aggregation: the provision of service for the aggregation and dissemination of media content offerings from curators. This includes cable companies – i.e. traditional Broadcast Distribution Undertakings (BDUs) as well as their online offerings; new virtual BDUs that package a number of online streaming services, such as StackTV; and news aggregators such as MSN News and Yahoo! News.

Sharing: the provision of a service that enables users to share amateur or professional media content. This includes YouTube, Facebook and other sharing platforms to the extent they enable the sharing of audio or audiovisual content, or alphanumeric news content.

All licensees and registrants would be obligated to contribute to Canadian content in a transparent fashion. Media curation undertakings brought under the regime – including Netflix and other online streaming services – would be required to devote a portion of their program budgets to Canadian programs. Media content aggregators and sharers would contribute through levies. All these financial contributions would be based on a simple calculation of the percentage of Canadian-derived revenues. The CRTC would determine the specifics – i.e. who contributes how much, based on which activities. It would also oversee administration and compliance. Entities with multiple lines of business would have varying obligations, depending on the nature of their activities.

We want to be clear that we are not recommending that Canadian content be supported by the so-called 'Netflix Tax' – charging consumers an extra levy on subscriptions to such services as Netflix. It is more appropriate to establish a regime that requires such online streaming services that benefit from operating in Canada to invest in Canadian programming that they believe will attract and appeal to Canadians. This approach would ensure a meaningful contribution to Canadian cultural policy objectives and the production sector. It need not result in higher prices for consumers.

The application of GST/HST to foreign online services is a different matter. Consistent with actions taken by some provinces and many other countries, we recommend that sales tax be applied equitably to media communications services provided by foreign online providers. This would eliminate the disadvantage to competing Canadian providers.

Our recommendations also introduce a new financing model and other initiatives to support the creation, production and discoverability of Canadian content and a strong production sector that would:

strengthen Canadian producers' ability to negotiate terms of trade with the purchasers of their content so that they may retain the commercial rights;

make it easier for broadcasters to adapt their business models to create and produce Canadian content; and

merge Telefilm Canada and the Canada Media Fund to create a new publicly funded institution that supports screen-based content, with a view to ensuring innovation and content from diverse voices, such as official language minority communities and Indigenous Peoples and communities.

A new role for CBC/Radio-Canada

Our framework would transform Canada's public broadcaster into a public media institution with a singular focus on serving a public rather than a commercial purpose; one prepared to experiment and increase the diversity of its content while remaining committed to high-quality standards. Among our recommendations to achieve this is that CBC/Radio-Canada should gradually eliminate advertising on all platforms over the next five years, starting with news content.

The Act would also explicitly state that CBC/Radio-Canada should reflect national, regional and local communities to national, regional and local audiences, and reflect Indigenous Peoples and promote Indigenous cultures and languages. In this way, Canadians would have access to content from different parts of the country that reflects their values, cultures and perspectives.

A focus on users

Central to all our recommendations is a desire to better position users of communications services – whether that be individual consumers, not-for-profit institutions or private sector organizations. This imperative is the common element in all our recommendations for reform, whether we are talking about access to broadband, access to media content, including diverse, trusted and accurate sources of news content, safeguards against privacy breaches, Big Data or harmful content.

As a first priority, we recommend that a universal service objective be enshrined in the Telecommunications Act . Affordable universal access to broadband is a must. It enables all Canadians to participate equally in society and to access Canadian choices and the best of content from around the world.

At the same time, we also recommend that an explicit policy objective be added to the Telecommunications Act to affirm a user right to an open Internet – in which lawful content can be accessed anytime, from anywhere – in order to ensure freedom of speech and innovation.

We also recommend four distinct strategies to further the goal of affordability:

Continuing to foster competition as a key tool to enhance affordability and choice: our recommendations require the CRTC to monitor and assess closely the state of competition in key electronic communications markets, including the market shares of non-Canadian participants, to ensure that rates are just and reasonable, and take remedial action if required. They focus on reducing systemic barriers to competition in electronic communications markets and providing the CRTC with a broader toolkit including: establishing an obligation, as a condition of forbearance from retail rate regulation, either to mandate supply of related wholesale inputs or to explain why it is not necessary or appropriate to do so; replacing the tariff regime with a modernized system for reference offers that would improve wholesale outcomes by elevating the importance of terms and conditions of service, including service supply and quality conditions; broadening the power of the CRTC to mandate interconnection; expanding access to telephone numbers and related numbering resources, including those relied upon in the Internet of Things ecosystem, by all providers under the jurisdiction of the Telecommunications Act ; and creating authority for the Minister to delegate to the CRTC sole responsibility for establishing terms and conditions of access to wholesale wireless services and for resolving competitive disputes regarding conditions of spectrum licences.

Broader scope of regulation: our recommendations require that all providers of electronic communications services be included under the CRTC's jurisdiction. Electronic communications services would be a new, inclusive term in the Telecommunications Act that would modify existing definitions to encompass all telecommunications networks and services as well as applications that ride on them.

that would modify existing definitions to encompass all telecommunications networks and services as well as applications that ride on them. More funding to support universal service: through our recommendations, more funds would be spent on the objective of universality, since all electronic communications service providers, including Internet service providers, above a revenue threshold to be set by the CRTC, would contribute proportionately to the CRTC Broadband Fund. These contributions would help support the extension of connectivity in underserved areas, particularly those in rural and remote communities. We do not believe electronic communications service providers, including Internet service providers should be required to contribute to the support of cultural policy objectives.

Regular study of affordability by the CRTC: we recommend that the CRTC regularly examine affordability of telecommunications services and, if necessary, implement measures to improve affordability for those Canadians who may be marginalized due to intersecting factors such as race, gender, income, citizenship status, disability, sexuality or age.

We also recommend that the objectives of both the Telecommunications Act and the Broadcasting Act be amended to address accessibility by persons with disabilities. This would recognize the importance of barrier-free access to communications services, and entrench accessibility above and beyond the Accessible Canada Act .

As Canadians strive to have a connected life, privacy and the confidentiality of user information take on even greater importance. We are convinced that stronger protections and rights for users must be established. The CRTC must be empowered to assert control over the dominant online platform providers with respect to the collection and use of personal data.

To this end, we recommend that the objectives of both the Telecommunications Act and the Broadcasting Act include commitments to protecting the privacy and confidentiality of customer information. We further recommend that the federal privacy law for private-sector organizations — the Personal Information Protection and Electronic Documents Act – be updated as necessary to ensure Canada is keeping up with emerging global standards, while respecting Canadians' fundamental right to freedom of expression.

A number of our recommendations address the crisis surrounding the current model for supporting news. Traditional news outlets are losing both advertising and subscription revenues, compromising their ability to produce quality news, while Canadians are increasingly accessing news content through online social media platforms. The platforms facilitate the sharing of content produced by other news media typically without any form of compensation to the journalists and media outlets that created the content. The problem is exacerbated by the imbalance in negotiating power between the dominant platforms and the great number of creators who actually produce the news.

Canadians must have access to diverse, accurate and trusted sources of news, including local and community sources of news. A strong, financially stable, and independent news sector that delivers these sources of news to Canadians through a variety of media is essential to the health of democracy and to an engaged citizenry. To achieve this, we recommend a set of inter-related strategies:

sustainable funding for a wide range of news sources would be generated through the contributions described earlier that would be applied to aggregators and sharers;

regulatory intervention to ensure that creators of news are compensated for the use of their original content by online platform providers;

the labour-based tax credit for news organizations announced by the federal government in 2018 would apply not only to print but to audio and audiovisual news delivered on all platforms; and

the provision of national, regional and local news as well as the reflection of Canadian perspectives on international news would be explicitly added to the mandate of CBC/Radio-Canada.

We are aware that over time the distinction we are making today between alphanumeric news content and other information made available to users – using Big Data, algorithms and AI-based processes – may blur and become difficult to draw. With this in mind, we would empower the CRTC to gather information, audit, monitor, and if appropriate regulate practices related to the delivery of news, including algorithms and AI-based processes. We would also ensure that the CRTC has appropriate powers to intervene with respect to the Big Data practices of all those under its jurisdiction, to address the interaction between Big Data and media content choices.

When it comes to the use of Big Data, we have been seized by the importance and urgency of a broad range of issues involving competition, consumer protection, privacy, public safety and taxation. These issues transcend the scope of the communications statues and go beyond the mandate of any single regulatory body. We are convinced that addressing the implications of the use of Big Data requires a multi-dimensional, holistic approach to developing an effective and comprehensive legislative framework. This is an urgent task that the federal government should act on promptly, involving all the relevant authorities including, at a minimum, Statistics Canada, the CRTC, the Office of the Privacy Commissioner, and the Competition Bureau.

When it comes to harmful content, we recommend actions by the government both here at home and in the international context. The federal government should introduce legislation with respect to liability for harmful content and conduct using communications technologies – separate and apart from any responsibilities that may be imposed through communications legislation. Since Canada is not alone in trying to grapple with issues related to harmful content, we also encourage the federal government to continue its active participation in international fora and activities to develop international best practices on harmful content.

Accelerating the roll-out of advanced networks

Access to broadband connectivity for Canadians and innovation by Canadian businesses depends on the efficient roll-out of safe and secure advanced networks, including the impending implementation of 5G. Our recommendations would accelerate roll-out of advanced wireline and wireless networks in three key ways.

Access would be granted to all forms of public property, such as lampposts and utility poles, for passive infrastructure. This measure would be accompanied by new streamlined methods of minimizing disputes and resolving those that arise among various stakeholders, including different levels of government.

A new streamlined approach would be implemented for the approval of an expanded range of telecommunications equipment needed for 5G and other technologies in the future, while continuing to ensure that all devices adhere to security, privacy and accessibility standards.

A more policy-oriented approach to spectrum regulation by the Minister and an expanded regulatory toolkit would include dynamic approaches for assigning spectrum.

Reimagining the role of the regulator

Fundamental changes to the role of the CRTC are needed. The Commission must have a deep understanding of the markets it regulates and leverage its knowledge and insights to anticipate change and take action, in a timely and appropriate manner.

More than an administrative tribunal, a renewed CRTC would have a proactive evidence based orientation that spots market distortions and systemic challenges early on, puts consumers in a position to advocate for themselves, and conducts monitoring and measurement that minimizes the need for more invasive intervention.

A much stronger research and analytic capability needs to be put in place. Woven through this report are recommendations requiring the CRTC to prepare and publish reports and evidence-based information on key issues and trends. These resources would provide a clear basis for the substantive decisions being taken and the impact they are expected to have. They would also be of tremendous value to public interest groups, including accessibility groups as well as Indigenous Peoples, and strengthen their capacity to participate in regulatory proceedings and planning processes.

Greater participation by public interest groups is vital if Canadians are to have confidence that the institutions are working in their best interest. We are recommending improved funding for public interest participation and the creation of a Public Interest Committee, funded by the CRTC and composed of not more than 25 individuals with a wide range of backgrounds, skills and experience. These recommendations would ensure that the diverse range of public, civic, consumer and small business interests — often unorganized or unrepresented in regulatory proceedings — have their voices heard.

We recognize that more resources would be required to support a more proactive regulator, and expect those to be generated through fees paid by all those to whom the Broadcasting Act and Telecommunications Act apply.

To reflect these changes in role and scope, we recommend that the name of the CRTC be changed to the Canadian Communications Commission. Its current name – the Canadian Radio-television and Telecommunications Commission – is out of step in a world that has moved beyond conventional radio and television stations, and in which telecommunications now encompasses a wide range of electronic communications.

The titles of two of the statutes we are reviewing should also be updated to reflect their broader scope; specifically the title of the Broadcasting Act should be changed to the Media Communications Act, and the title of the Telecommunications Act should be changed to the Electronic Communications Act. No change is required, in our view, to the name of the Radiocommunication Act.

Call for immediate action

It takes time for government to develop and enact new legislation; however, there are steps that can and must be taken now to address the most pressing and urgent issues. We call for immediate action in these key areas:

Roll out the announced funding for expansion of broadband: we applaud those governments across the country that have made commitments in this area and call on them to move promptly and in a more coordinated fashion to release the funding to make a tangible and immediate difference in the lives of those Canadians who today lack an appropriate level of connectivity.

Require media content curators now exempt to contribute to Canadian content: to achieve this, the federal government should require the CRTC to hold hearings and issue a new exemption order so that those media content curators that derive revenue from Canada and are now exempt from licensing, such as Netflix, are required to contribute to Canadian content through spending and discoverability requirements, consistent with our recommended legislative framework.

End the competitive disadvantage facing Canadian companies: apply GST/HST equitably to media communications services provided by foreign online providers.

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List of recommendations

1. Renewing the institutional framework

We recommend that to better reflect the expanded role and responsibilities of the communications regulator and the broader scope of communications legislation, terminology be modernized as follows: The name of the Canadian Radio-television and Telecommunications Commission be changed to the Canadian Communications Commission, and the title of the Act governing the CRTC be changed to the Canadian Communications Commission Act .

. The title of the Broadcasting Act be changed to the Media Communications Act .

be changed to the . The title of the Telecommunications Act be changed to the Electronic Communications Act . We recommend that to provide the CRTC with flexible powers to monitor existing markets and to develop a stronger research and strategic foresight capability, the following amendments be made: The CRTC Act be amended to require the CRTC to maintain accurate market data, and conduct, commission, and publish reports and evidence-based information on key issues and trends for the benefit of all Canadians.

The Broadcasting Act be amended to include information gathering and investigatory powers similar to those set out at sections 37-39 and 70-71 of the Telecommunications Act . We recommend that to ensure an open and transparent appointment process for Commissioners, section 3 of the CRTC Act be amended to require that qualified candidates be selected from applicants through an open call, guided by published, merit-based criteria. We recommend that sections 3, 5, 6, and 10.1 of the CRTC Act be amended to reduce the maximum number of Commissioners to a Chair, a Vice-Chair, and up to seven additional Commissioners, each appointed for a single term of up to seven years. For the term of their appointment, Commissioners should reside in the National Capital Region or within a prescribed distance thereof. We recommend that to ensure transparency, the CRTC and ISED be required to identify the classifications of those regulatory officials with whom stakeholder contacts would be required to be publicly reported. We recommend that to facilitate the Governor in Council's use of power to issue policy directions to the CRTC, the following amendments be made: Subsections 8(1–2) of the Broadcasting Act and 10(1) of the Telecommunications Act be amended to require simple publication of the proposed direction, with a 45-day comment period, to be followed by publication of all interventions.

and 10(1) of the be amended to require simple publication of the proposed direction, with a 45-day comment period, to be followed by publication of all interventions. Subsection 5(1.1) of the Radiocommunication Act be amended to provide that the Minister of Industry shall have regard, in regulating radiocommunication, not only for the objectives of the Canadian telecommunications policy, but also for any policy directions issued by the Governor in Council under that Act. We recommend that to enhance the consistency, transparency, and predictability of the process for appeals of individual CRTC decisions to the Governor in Council, the provisions for such appeals in both the Broadcasting Act and Telecommunications Act be amended to: synchronize their timelines by requiring that an application be filed within 60 days of a CRTC decision and that Governor in Council make a decision within 180 days of the date of said CRTC decision;

harmonize their scope, by eliminating the power to vary a decision from section 12 of the Telecommunications Act ; and

; and provide that an appeal to which the Governor in Council does not respond within the allotted time is deemed to have been denied. We recommend that to increase regulatory certainty, the timeline for the exercise of the CRTC's review and variance power be entrenched directly in the statute, by amending section 62 of the Telecommunications Act to provide that a decision to review, rescind, or vary a decision or to rehear a matter be made within 120 days of the close of the record of the proceeding. We recommend that to ensure that the CRTC and the Competition Bureau are each able to share expertise: the Broadcasting Act and Competition Act be amended to give each agency access to confidential information filed with the other, similar to the provisions set out in the Telecommunications Act ;

and be amended to give each agency access to confidential information filed with the other, similar to the provisions set out in the ; the Telecommunications Act and the Broadcasting Act be amended to authorize the CRTC to require a party to produce information relevant to competition issues requested by the Commissioner of Competition in the context of an intervention pursuant to section 125 of the Competition Act ;

and the be amended to authorize the CRTC to require a party to produce information relevant to competition issues requested by the Commissioner of Competition in the context of an intervention pursuant to section 125 of the ; the agencies be encouraged to revise their Letter of Agreement to require mutual notification of all matters requiring both telecommunications or broadcasting policy and competition law expertise; and

the agencies advise the Minister of Industry on an annual basis of those matters not notified and reasons for their exclusion, so that the Minister of Industry is able to identify any remaining barriers to mutual notification and consultation. We recommend that the Ministers of Industry and Canadian Heritage inform the CRTC upon receiving notification of foreign investment in businesses providing Canadian communications services, in order that the CRTC have the ability to provide advice on any telecommunications or broadcasting policy issues. We recommend that to ensure that the CRTC and ISED have the means to align their approaches with respect to embedding the privacy principles overseen by the Office of the Privacy Commissioner within communications services, technologies, and business processes, the following amendments be made: The provisions in section 39 of the Telecommunications Act on information sharing with the Commissioner of Competition, and any similar provisions adopted under the Broadcasting Act , be extended to the Privacy Commissioner.

on information sharing with the Commissioner of Competition, and any similar provisions adopted under the , be extended to the Privacy Commissioner. The provisions in section 23 of the Personal Information Protection and Electronic Documents Act on consultation, agreements and arrangements, and information sharing with provincial counterparts be extended to include federal institutions whose functions and duties relate to privacy within particular industry sectors. We recommend that to promote public interest group participation in regulatory proceedings: the Broadcasting Act be amended to provide the CRTC with explicit authority to award costs, similar to the authority granted under subsections 56(1) and 56(2) of the Telecommunications Act ;

be amended to provide the CRTC with explicit authority to award costs, similar to the authority granted under subsections 56(1) and 56(2) of the ; ISED establish a funding program to support participation in proceedings under the Radiocommunication Act ; and

; and the provisions concerning cost awards in the Broadcasting Act and Telecommunications Act be amended to include appeals that flow from decisions so that public interest intervenors are not left behind on appeals. We recommend that the Broadcasting Act and the Telecommunications Act be amended to include public interest participation funding in the operational funding requirements of the CRTC, and that this be included in the expenditure plans for Broadcasting Activity and Telecommunications Activity costs recovered under the Broadcasting Licence Fee Regulations and Telecommunications Fee Regulations , respectively. We further recommend that ISED's operational funding include amounts to be directed to public interest participation. We recommend that the CRTC convene a public consultation on establishing a transparent process for funding public interest participation regarding telecommunications or broadcasting based on the following elements: to ensure transparency, the CRTC would be required to report quarterly on the status of cost claims and their disposition;

to ensure timeliness, the funding process would be subject to a three-month service standard with a six-month upper limit for the completion of cost awards. The CRTC would be required to report annually on compliance with this standard; and

to eliminate lengthy and adversarial processes, the new process would be administered either by CRTC staff directly or delegated to an independent organization modelled along the lines of the Broadcasting Participation Fund. We recommend that the CRTC Act be amended to require the creation of a Public Interest Committee funded by the CRTC and composed of not more than 25 individuals with a wide range of backgrounds, skills, and experience representing the diversity of public, civic, consumer, and small business interests, and including Indigenous Peoples. The CRTC should be encouraged to meet with representatives of Indigenous Peoples and communities outside of the Committee structure. The Committee should also include, as an ex officio member, a representative of the Accessibility Advisory Committee called for in Recommendation 88.

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2. Affordable access to advanced telecommunications networks

We recommend that the definitions in the Telecommunications Act be amended to replace "telecommunications service" with "electronic communications service," which means a service provided by means of telecommunications facilities and, without limitation, includes: the provision in whole or in part of telecommunications facilities and any related equipment by sale, lease, or otherwise;

connectivity service, a service whose principal feature is the conveyance of intelligence by means of telecommunications facilities; and

interpersonal communications service, a service that enables direct interpersonal and interactive exchange of information via telecommunications facilities between a finite number of persons. The persons initiating or participating in the communication determine its recipients. We recommend eliminating the terms "telecommunications common carrier," "Canadian carrier," and "telecommunications service provider" from the Telecommunications Act , with consequential amendments to refer to providers of defined functions and activities. We recommend the following amendments to the Telecommunications Act to regularize a class-based approach to electronic communications regulation: Amend paragraph 32(a) to broaden the CRTC's power to establish classes of service and service providers for purposes of the whole Act, not just the Act's Part III.

Consolidate sections 9, 24 and 24.1 to establish the CRTC's authority to establish class-based exemptions or conditions of service — like emergency services or privacy obligations — in a single provision that does not depend on the status of competition in a market but does require that the conditions be applied to a clearly defined class. We recommend that the Telecommunications Act be amended to establish explicit jurisdiction over all persons and entities providing, or offering to provide, electronic communications services in Canada, even if they do not have a place of business in Canada. We recommend that international telecommunications services licensing be replaced by CRTC-administered registration. We recommend that instead of restrictions on acting as a "Canadian carrier", section 16 of the Telecommunications Act refer to restrictions on owning or operating a terrestrial transmission facility used to provide an electronic communications service. We recommend that the CRTC have explicit responsibility for the administration of databases related to the functioning and location of telecommunications networks. Such databases would clarify who operates which facilities in which locations; help facilitate interoperation and deployment of new network facilities; and clarify connectivity gaps in rural and remote communities. We recommend that the Telecommunications Act be amended to require market participants, in classes specified by the CRTC, to register and provide such information as the CRTC may specify, including beneficial ownership information. We further recommend that the CRTC maintain a public registry of such information that the CRTC has not found to be confidential. We recommend that the policy objectives of the Telecommunications Act be amended to reflect that all Canadians, including those with disabilities, should have timely, affordable, barrier-free access to the advanced telecommunications necessary to fully participate in Canadian society and the global economy. We recommend that the Telecommunications Act be amended to enable the CRTC to draw from an expanded range of market participants — all providers of electronic communications services — in designating required contributors to funds to ensure access to advanced telecommunications. We recommend that the federal government engage with Indigenous Peoples and communities on how broadband expansion should be implemented in Indigenous communities and other related issues, such as Indigenous ownership of broadband networks. We recommend that the Telecommunications Act be amended to require the Minister of Industry to submit an annual report to Parliament on the status of broadband deployment, including in rural and remote communities and with respect to Indigenous Peoples and communities. We recommend that the telecommunications policy objectives of the Telecommunications Act include the following as an objective: To foster a competitive market for the provision of electronic communications services primarily through reliance on market forces and, where required, through efficient and effective regulation. We recommend that the Telecommunications Act be amended to explicitly require the CRTC to monitor and assess the state of competition in key electronic communications markets — including the market shares of non-Canadian participants — to ensure that rates are just and reasonable. We recommend that the forbearance provisions be amended as follows: The CRTC should not be permitted to forbear from the consolidated section 24/24.1 recommended above.

The CRTC should not be permitted to forbear from its affirmative obligation to ensure the justness and reasonableness of the rates that prevail in the market.

The CRTC should not be permitted to forbear from subsection 27(2) of the Act. The CRTC should have ongoing responsibility to address complaints of unjust discrimination or undue preference.

Eliminate the discretionary authority of the CRTC in subsection 34(1) of the Act to forbear from regulation in a market.

Allow the CRTC broader discretion as to when to employ regulatory tools, such as pre-approval of working agreements and of limitation of liability clauses, from which it has not forborne.

Continue to require forbearance where the market is sufficiently competitive to protect the interests of users under subsection 34(2). The CRTC must, as a condition of forbearance from retail rate regulation, either mandate supply of related wholesale inputs or explain why it is unnecessary or inappropriate to do so. We recommend that the CRTC's authority over tariffing be consolidated, specifying that tariffs (to be renamed "reference offers") must set out not only rates but also, at a minimum: required terms and conditions;

details of associated operational processes; and

service supply and quality conditions. We recommend that the CRTC be authorized to issue an interconnection order regarding any electronic communications service. We recommend that direct access to numbering resources be broadened to all existing and prospective electronic communications service providers that are within the jurisdiction of the Telecommunications Act . We recommend that to promote efficient network deployment, the Telecommunications Act be amended to require those providing electronic communications service to the public to grant access to their support structures at fair and reasonable rates and on a non-exclusive basis to persons who own or operate transmission facilities used to provide connectivity services to the public. We recommend that sections 43 through 46 of the Telecommunications Act , which establish tools to support network deployment, replace references to specific entities (i.e. Canadian carriers, distribution undertakings) with persons who own or operate transmission facilities used to provide connectivity services to the public and prohibit any exclusive arrangement for the use of passive infrastructure. The locations at which facilities must now be installed to pursue network deployment have broadened. We recommend that subject to any exclusions the CRTC may determine: the CRTC's authority over passive infrastructure should clearly include access to all public property capable of supporting such facilities, such as street furniture;

the scope of access should include radiocommunication facilities and the telecommunications facilities necessary to operate them;

the scope of access should also include non-discriminatory access to the support structures of provincially regulated utilities;

the Telecommunications Act should be amended to authorize the CRTC to mandate access to inside and in-building wire, support structures, and rooftops within and on multi-dwelling unit buildings and be available to all providers of an electronic communications service; and

should be amended to authorize the CRTC to mandate access to inside and in-building wire, support structures, and rooftops within and on multi-dwelling unit buildings and be available to all providers of an electronic communications service; and the Minister of Industry should assign operational oversight of the radiocommunication and broadcasting antenna siting process to the CRTC, including managing the interaction with municipalities and land-use authorities. We recommend that the Telecommunications Act be amended to require the CRTC to consult with the relevant municipality or other public authority prior to exercising its discretion to grant permission to construct telecommunications facilities. We further recommend that the Act be amended to empower the CRTC to review and vary the terms and conditions of access to the support structures of provincially regulated utilities, to ensure non-discriminatory arrangements. We recommend that to more effectively resolve disputes relating to mandatory antenna tower and site sharing, the Minister delegate the resolution of disputes relating to these or other conditions of licence to the CRTC. We further recommend that the Minister should, in existing conditions of licence, direct disputes to the CRTC rather than to commercial arbitration. We recommend that the CRTC assume sole jurisdiction to mandate and establish terms and conditions of access to wholesale wireless services. We recommend that the Radiocommunication Act be updated to ensure that all types of apparatus, systems, or any other thing that affect safe, secure, reliable, and interference-free radiocommunication in Canada are included in the Act's scope. We further recommend that the definitions in section 2 and the prohibitions in section 4 be reviewed as a whole to ensure that the following are included: apparatus that is intended for or capable of being used for radiocommunication;

apparatus that unintentionally emit electromagnetic waves or frequencies for purposes other than radiocommunication;

apparatus that intentionally emit electromagnetic waves or frequencies for purposes other than radiocommunication; and

apparatus or any other system or thing that can block, interfere with, distort, or alter radiocommunication. We recommend that to facilitate the shared use of radio spectrum, the Radiocommunication Act be amended to empower the Minister of Industry to: establish mechanisms to facilitate trading or leasing of licences;

administer databases or information, administrative, or operational systems that govern the use of radio spectrum under one or more classes of licences or licence exemptions; and

delegate such administrative powers to any person. We recommend that the Radiocommunication Act be amended to empower the Minister of Industry to establish conditions for the use of specific models of radio apparatus that have been exempted from licensing requirements in order to enable ongoing spectrum management between diffuse users of advanced technologies outside the licensed system. We further recommend that to reduce the regulatory burden associated with the introduction of new wireless technologies, the Act be amended to provide the Minister of Industry rather than the Governor in Council with the power to exempt models of radio apparatus from licensing requirements. We recommend that the Minister of Industry be given responsibility for ensuring that communications devices and their operating systems respect security requirements, protect users' privacy, and incorporate accessibility features. Equipment standards established under the Telecommunications Act and the Radiocommunication Act should be revised to reflect those considerations. We recommend the following amendments in order to update the communications equipment certification system: amend the prohibition in 69.2 of the Telecommunications Act to include the manufacture of telecommunications apparatus;

to include the manufacture of telecommunications apparatus; expand the prohibitions in both the Telecommunications Act and the Radiocommunication Act to include "persons facilitating the importation, distribution, offer for sale, and sale of devices in Canada";

and the to include "persons facilitating the importation, distribution, offer for sale, and sale of devices in Canada"; amend the provisions that currently empower the Minister and the Governor in Council to establish technical requirements and technical standards in relation to communications equipment, to include the power to establish standards in relation to the operating systems and software that run the devices; and

align the Minister of Industry's powers in relation to radio apparatus, interference-causing equipment, and radio-sensitive equipment in order to authorize the creation of a registry system for equipment regulated under the Radiocommunication Act similar to that currently found under the Telecommunications Act . We recommend that to ensure the trust and safety of users of electronic communications services, the policy objectives of the Telecommunications Act be amended to include the promotion of the security and reliability of telecommunications networks and electronic communications services. Canada should not wait to establish security baselines that enhance trust in telecommunications markets. We recommend that the CRTC initiate a proceeding to update the Security Best Practices for Canadian Telecommunications Service Providers issued by the Canadian Security Telecommunications Advisory Committee and to determine to which classes of service providers these practices should apply. We encourage the federal government and its lead agencies on national security and public safety to consider whether additional powers may be required on a coordinated or sector-specific basis to ensure that relevant electronic communications services and facilities remain safe and secure. In this review, the federal government should consider whether to replicate certain powers granted under the Radiocommunication Act in the Telecommunications Act . We recommend that to safeguard continued access to an open Internet, which is fundamental to net neutrality: The policy objectives of the Telecommunications Act be amended to reflect the CRTC's duty to safeguard open Internet access in Canada. This is intended to ensure that users have the right, via their Internet access service, to access and distribute lawful information and content, use and provide applications and services, and use terminal equipment of their choice, irrespective of the location, origin, or destination of the information, content, application, or service.

be amended to reflect the CRTC's duty to safeguard open Internet access in Canada. This is intended to ensure that users have the right, via their Internet access service, to access and distribute lawful information and content, use and provide applications and services, and use terminal equipment of their choice, irrespective of the location, origin, or destination of the information, content, application, or service. The term "Canadian carrier" in subsections 27(2) and (4) of the Telecommunications Act be deleted in favour of language allowing the CRTC to review unjust discrimination in the provision of any electronic communications service by any person. We recommend that the CRTC expand its information gathering and reporting on network neutrality, including Internet traffic management practices, zero rating, and any further open Internet access provisions, including: To require Internet service providers to inform users of network speeds and management practices when contracting for and providing the service, and to report annually to the CRTC on network management practices and their impacts.

To report annually, either as a stand-alone report or combined with other reporting, on practices that affect achievement of the open Internet access policy objective. We recommend that the legislation governing the telecommunications sector include a provision setting out the policy objectives of the legislation in the following terms: It is hereby affirmed that telecommunications perform an essential role in the maintenance of Canada's identity and sovereignty and to safeguard, enrich, and strengthen the social and economic fabric of Canada and its regions. The Canadian telecommunications policy has as its objectives: To promote timely, affordable, barrier-free access by all Canadians, including those with disabilities, to the advanced telecommunications necessary to fully participate in Canadian society and the global economy. To foster innovation and investment in high-quality, advanced connectivity in all regions of Canada, including urban, rural, and remote areas. To foster a competitive market for the provision of electronic communications services primarily through reliance on market forces and, where required, through efficient and effective regulation. To promote the security and reliability of telecommunications networks and electronic communications services. To contribute to the protection of the privacy and confidentiality of user information. To safeguard open access to the Internet. To promote the ownership and control of Canadian transmission facilities by Canadians. To promote the use of Canadian telecommunications facilities for electronic communications within Canada and between Canada and points outside Canada.



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3. Creation, production, and discoverability of Canadian content

We recommend that the scope of the Broadcasting Act extend beyond audio and audiovisual content to include alphanumeric news content made available to the public by means of telecommunications, collectively known as media content. We further recommend that the definition of "program" in the Act be modernized and replaced by the following: Media content means audio or audiovisual content or alphanumeric news content;

means audio or audiovisual content or alphanumeric news content; Audio or audiovisual content means sounds or moving images, or a combination of sounds and moving images, interactive or not, that are intended to inform, enlighten, or entertain and are made available to the public by means of telecommunications. However, this definition does not include such transmission when made solely for performance or display in a physical public place, or images that consist predominantly of alphanumeric text and are not accompanied by sounds;

means sounds or moving images, or a combination of sounds and moving images, interactive or not, that are intended to inform, enlighten, or entertain and are made available to the public by means of telecommunications. However, this definition does not include such transmission when made solely for performance or display in a physical public place, or images that consist predominantly of alphanumeric text and are not accompanied by sounds; Alphanumeric news content means news about current events that predominantly consists of alphanumeric text that is made available to the public by means of telecommunications. We recommend that section 3 of the Broadcasting Act be amended to create a new declaration that: the Canadian media communications sector, operating primarily in the English and French languages and comprising public, private, and community elements, uses interprovincial and international undertakings and facilities and provides, through its media content, a public service essential to the maintenance and enhancement of national identity, cultural sovereignty, and Canada's democracy;

the media communications sector serves to safeguard, enrich, and strengthen the cultural, political, social, and economic fabric of Canada. We recommend that the policy objectives currently contained in section 3 of the Broadcasting Act be modernized to reflect the changing environment and be replaced by the following: Canadians should have access to trusted, accurate, and reliable sources of news reflecting national, regional, and local perspectives from diverse sources and across all platforms.

Canadians should be able to find and access a wide range of media content choices, including Canadian choices, that are affordable and reflect a diversity of voices.

Canadians should be able to access and consume media content safely and securely and be assured that their data and privacy are respected and protected.

Media content undertakings should have a responsibility for the media content they provide.

The media communications sector should: invest in the development, creation, and distribution of high-quality Canadian content that competes at home and abroad and reflects Canadian diversity, with each undertaking making maximum use of Canadian creative and other resources in the creation and presentation of media content, taking into account its circumstances; ensure the creation of and access to content by and for Indigenous Peoples, including Indigenous languages content; ensure the creation of and access to content by and for official language minority communities; meet the needs of Canadians with disabilities and ensure creation of and access to content by and for Canadians with disabilities; consist of Canadian-owned and -controlled companies alongside foreign companies; and promote the development of a strong Canadian production sector, including a robust independent production community.

We recommend that the Broadcasting Act apply to media content undertakings involved in the creation and distribution of media content. The term "media content undertaking", which would replace the term "broadcasting undertaking" in the Act, would include media curation undertakings, media aggregation undertakings, and media sharing undertakings, as follows: Media curation undertaking means an undertaking whose primary purpose is to provide a service for the dissemination of media content over which it exercises editorial control. In this context, editorial control means effective control over the creation or selection of media content, including through agreements with rights holders with respect to its creation or dissemination.

means an undertaking whose primary purpose is to provide a service for the dissemination of media content over which it exercises editorial control. In this context, editorial control means effective control over the creation or selection of media content, including through agreements with rights holders with respect to its creation or dissemination. Media aggregation undertaking means an undertaking that, in whole or in part, provides a service that aggregates and disseminates media content provided by media curation undertakings.

means an undertaking that, in whole or in part, provides a service that aggregates and disseminates media content provided by media curation undertakings. Media sharing undertaking means an undertaking that, in whole or in part, provides a service that enables users to share media content for which the provider does not have editorial control but which the provider organizes or controls. We recommend that for greater certainty, the Broadcasting Act be amended to establish that the legislation applies to undertakings carried on in part within Canada, whether or not they have a place of business in Canada. This would include undertakings, persons, and entities that disseminate media content by telecommunications to Canadians or make media content available to Canadians for compensation. We further recommend that the reference to the sector as a single system that shall be owned and controlled by Canadians be removed from the Act. We recommend that the existing licensing regime in the Broadcasting Act be accompanied by a registration regime. This would require a person carrying on a media content undertaking by means of the Internet to register unless otherwise exempt. Those carrying on a media content undertaking by means other than the Internet would continue to require a licence unless otherwise exempt. We recommend that to implement the new registration regime, the Broadcasting Act be amended to provide that certain powers of the CRTC in section 9 with respect to licensing also apply to registration. This includes provisions that enable the CRTC to establish classes of registrants, to amend registrations, and impose requirements — whether through conditions of registration or through regulations — on registrants, including the payment of registration fees. This would also include imposing penalties for any failure to comply with the terms and conditions of registration. We recommend that the CRTC have the power to exempt any media content undertaking or classes of media content undertakings from registration in instances in which — by virtue of its specialized content or format, revenues, or otherwise — regulation is neither necessary nor appropriate to achieve media content policy objectives. We recommend that subsection 5(2) of the Broadcasting Act be amended to provide further policy guidance to the CRTC so that the system is regulated and supervised in a flexible manner that: ensures that regulation is equitable, reasonable, and proportional to the objective or outcome sought;

ensures that undertakings contribute in an appropriate manner to the creation, production, and discoverability of Canadian media content;

promotes transparency, responsibility, and accountability in the way undertakings operate; and

promotes public participation in regulatory proceedings. We recommend that all media content undertakings that benefit from the Canadian media communications sector contribute to it in an equitable manner. Undertakings that carry out like activities should have like obligations, regardless of where they are located. We recommend that the Broadcasting Act be amended to ensure that the CRTC may by regulation, condition of licence, or condition of registration: impose spending requirements or levies on all media content undertakings, except those whose primary purpose is to provide a service for the dissemination of alphanumeric news content over which it exercises editorial control;

impose discoverability requirements on all media content undertakings, except those whose primary purpose is to provide a service for the dissemination of alphanumeric news content over which it exercises editorial control;

regulate economic relationships between media content undertakings and content producers, including terms of trade; and

resolve disputes between media content undertakings. We recommend that in general, media curation undertakings have spending requirements rather than levies to support Canadian content. Levies should apply to media aggregation and media sharing undertakings. In circumstances in which spending requirements are inappropriate, levies should apply. To ensure that Canadians are able to make informed choices and that Canadian content has sufficient visibility and is easy to find on the services that Canadians use, we recommend that the CRTC impose discoverability obligations on all audio or audiovisual entertainment media content undertakings, as it deems appropriate, including: catalogue or exhibition requirements;

prominence obligations;

the obligation to offer Canadian media content choices; and

transparency requirements, notably that companies be transparent with the CRTC regarding how their algorithms operate, including audit requirements. We recommend that the CRTC use its power to collect information and obtain consumption data from online media content undertakings and publish them in aggregated form. We recommend that the government establish a single public institution tasked with funding the creation, production, and discoverability of Canadian productions on all screens. This institution will combine the functions of the Canada Media Fund and Telefilm Canada. We recommend that the regulatory levy that formerly went to the Canada Media Fund be redirected to the Certified Independent Production Funds, as well as to other existing or new funds or programs approved by the CRTC. We recommend that where media curation undertakings include new Canadian dramas and long-form documentaries in their offerings that count toward their regulatory obligations, the CRTC should set an expectation that all key creative positions be occupied by Canadians on a reasonable percentage of those programs. If the expectation is not met over time, the CRTC should consider converting it to a requirement. We recommend that the federal government index to inflation parliamentary appropriations allocated to institutions supporting cultural media content. We recommend that as a general principle, the government ensure that tax credits and funds are platform-agnostic and are accessible to all Canadian production companies, whether independent or broadcaster affiliated. We recommend that the federal government ensure that the labour-based tax credit for journalism organizations announced in 2018 apply to undertakings that deliver alphanumeric, audio, or audiovisual news content on all platforms. We recommend that the CRTC consider that some or all of the levies on media aggregation and media sharing undertakings contribute to the production of news content. These contributions would be directed to an independent, arm's length CRTC-approved fund for the production of news, including local news on all platforms. We further recommend that the CRTC consider redirecting a greater portion of the levy currently paid by broadcasting distribution undertakings to this same fund for the production of news. We recommend that the relationship between social media platforms that share news content and the news content creators be regulated to ensure that news producers are treated fairly where there is an imbalance in negotiating power. Consistent with the earlier Recommendation 61, the CRTC should have the specific jurisdiction to regulate economic relationships between media content undertakings and content producers, including terms of trade. This would include media content undertakings that make alphanumeric news content available to the public. We recommend that to promote the discoverability of Canadian news content, the CRTC impose the following requirements, as appropriate, on media aggregation and media sharing undertakings: links to the websites of Canadian sources of accurate, trusted, and reliable sources of news with a view to ensuring a diversity of voices; and

prominence rules to ensure visibility and access to such sources of news. We recommend that the Broadcasting Act be amended to ensure that the CRTC can — by regulation, condition of licence, or condition of registration — impose codes of conduct, including provisions with respect to resolution mechanisms, transparency, privacy, and accessibility regarding all media content undertakings. We recommend that the Broadcasting Act be amended to give the CRTC the power to provide partial or additional relief, to issue conditional and interim decisions, and to issue ex parte decisions where the circumstances of the case justify it. We recommend that the Broadcasting Act be amended to ensure that the CRTC can — by regulation, condition of licence, or condition of registration — impose reporting requirements, including with respect to financial information, consumption data, and technological processes such as algorithms, on all media content undertakings. We recommend that to strengthen the compliance regime for both licences and registrations, the Broadcasting Act be amended to include provisions for Administrative Monetary Penalties, similar to the general scheme in the Telecommunications Act , with maximum thresholds set at a level high enough to create a deterrent for foreign undertakings. We recommend that to address piracy, sections 9 and 10 of the Radiocommunication Act — which state that it is an offence to decode, retransmit, or operate devices, equipment, or components to receive unlawfully decrypted subscription programs — be moved to the Broadcasting Act and be expanded to include all forms of media content, whether received through satellites or the Internet. We recommend that to ensure the national public broadcaster is able to adapt to a more open, global, and competitive media communications environment, the Broadcasting Act be amended to remove the specific reference to radio and television in the mandate of CBC/Radio-Canada. This would ensure that CBC/Radio-Canada is able to provide a wide range of media content that informs, enlightens, and entertains on multiple platforms and media. We recommend that the Broadcasting Act be amended to add the following elements to the mandate of CBC/Radio-Canada: reflecting local communities and audiences;

providing national, regional, and local news;

reflecting Canadian perspectives on international news;

reflecting Indigenous Peoples and promoting Indigenous cultures and languages;

showcasing Canadian content to international audiences; and

taking creative risks. We further recommend that the Act be amended to ensure that the national public broadcaster has the objects and powers it needs to deliver on its updated mandate. We recommend that the Broadcasting Act be amended to require the federal government to enter into funding commitments of at least 5 years with CBC/Radio-Canada, based on discussions with the Corporation on its funding needs, including those required to carry out its updated mandate and taking into account inflation and projected revenues from advertising and subscriptions. We further recommend that CBC/Radio-Canada gradually eliminate advertising on all platforms over the next five years, starting with news content. We recommend that the Broadcasting Act be amended to enshrine an open, transparent, and competency-based appointment process for Governor in Council appointments of CBC/Radio-Canada's Chair, President, and Board of Directors. This amendment should also require that the appointments process ensure diversity, gender parity, and representation from Indigenous and minority groups. We recommend that the Broadcasting Act be amended to shift the CRTC's role from licensing individual services of CBC/Radio-Canada to overseeing all its content-related activities. We further recommend that the CRTC report to the Minister of Canadian Heritage annually on the status of CBC/Radio-Canada's performance of its mandate. We recommend that while awaiting the adoption of legislative amendments, the government urgently issue directives to the CRTC, requiring that it hold a hearing and issue a new exemption order to impose obligations on Internet programming undertakings that generate a certain minimum revenue in Canada. We recommend that the federal government require foreign media content undertakings to collect and remit the GST/HST.

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4. Improving the rights of Canadians and enhancing trust in the digital environment

We recommend that the Telecommunications Act be amended to require the CRTC to study the affordability of telecommunications services periodically and, if necessary, to implement measures to improve affordability for marginalized Canadians from diverse social locations. We recommend that the objectives of the Telecommunications Act and the Broadcasting Act be amended to include accessibility of services covered by the respective Acts by persons with disabilities to recognize the importance of barrier-free access to communications services, and entrench accessibility above and beyond the Accessible Canada Act . We recommend that the CRTC Act be amended to require the CRTC to create and fund participation in an Accessibility Advisory Committee to meet, at a minimum, on an annual basis, and to publish reports on these meetings. We further recommend that a delegate of the Accessibility Advisory Committee be an ex officio member of the Public Interest Committee recommended in Recommendation 15 of this Report. We recommend that the federal government, together with provincial and territorial authorities, develop a national digital literacy strategy to empower users of communications and digital services to make informed choices and conduct their online activities safely. We further recommend that the Telecommunications Act and Broadcasting Act be amended to grant the CRTC authority to examine and report on digital and media literacy. We recommend that the objectives of the Telecommunications Act and the Broadcasting Act be amended to include a commitment to protecting the privacy and confidentiality of user information with respect to communications services covered by the respective Acts. We recommend that the Personal Information Protection and Electronic Documents Act be adapted as appropriate to ensure adequacy with emerging global standards, except for any standards that may be inconsistent with Canadians' fundamental right to freedom of expression. We recommend that Statistics Canada, the CRTC, the Competition Bureau, the Office of the Privacy Commissioner and other relevant regulatory authorities be charged by the federal government with examining the use of Big Data by dominant online platform providers and potential threats to privacy, competition, consumer protection, cultural sovereignty, democratic institutions, and taxation, and make recommendations on legislation that may be appropriate to address these matters. We recommend that the Ministers of Canadian Heritage and of Industry direct the CRTC to gather information, audit, and intervene, if necessary, with regard to how services covered by the Broadcasting Act and the Telecommunications Act combine algorithms and artificial intelligence with Big Data, in order to respond quickly to changes in the communications services, improve transparency, and promote trust. We recommend that the federal government introduce legislation with respect to liability of digital providers for harmful content and conduct using digital technologies, separate and apart from any responsibilities that may be imposed by communications legislation. Given that the challenges in this area are global in nature, we also encourage the federal government to continue to participate actively in international fora and activities to develop international cooperative regulatory practices on harmful content. We recommend that the federal government regularly review the efficiency of enforcement mechanisms for monitoring and removing illegal content and conduct found online. Given the diverse range of governing frameworks for these matters in Canada, we encourage the federal government to coordinate with provincial and territorial governments. We recommend that in order to better protect the interest of consumers, the Telecommunications Act and the Broadcasting Act be amended to entrench and expand the role of the Commission for Complaints for Telecom-Television Services in statute, by enabling the CRTC to: create and approve the mandate and structure of an independent, industry-funded, communications consumer complaints office with the authority to investigate and resolve complaints from individual and small business retail customers of services covered by the respective Acts;

require the office to report publicly on its handling of complaints, periodically and no less than annually; and

take action on consumer issues identified by the office and report annually on measures taken to address those issues. We recommend that the CRTC review periodically its consumer protection framework for services covered under the Telecommunications Act and the Broadcasting Act , having regard to consumer trends and habits, and systemic consumer issues identified by the independent communications consumer complaints office. We further recommend that in order to ensure consistent minimum standards with respect to consumer protection, the CRTC: take into account any provincial and territorial consumer protection measures that may impact communications services when adopting consumer protection measures; and

provide justification in those instances in which it adopts consumer protection measures that provide for lesser protection than those in any given Canadian jurisdiction.

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1. Renewing the institutional framework

1.1 Introduction

In the face of constant and disruptive technological change, a modern legislative framework for Canada's communications sector must be flexible and adaptable to achieve its stated policy objectives. To this end, in this chapter, we outline our vision for a reimagined communications regulator that is proactive, forward-looking, and has the ability to anticipate and adapt to a constantly changing environment. Our recommended changes to the institutional framework would ensure that this framework is appropriately designed and equipped to operate efficiently and effectively in the best interests of Canadians.

In this chapter, we explore three main themes. First, we take an in-depth look at the approach, composition, and enforcement powers of the communications regulator, as well as the creation of a sustainable source of financial support for the Canadian Radio-television and Telecommunications Commission (CRTC or Commission). Second, we examine the appropriate allocation of responsibilities among the various government bodies involved in regulating or overseeing the communications sector, and we recommend changes that are better suited to an era of constant and rapid technological change. Finally, we look at how to encourage greater participation by public interest groups in proceedings under the statutes we are reviewing.

1.2 The current institutional framework

Canada's communications legislation provides for two regulatory agencies: the CRTC and Innovation, Science and Economic Development Canada (ISED).

The CRTC is established under the Canadian Radio-television and Telecommunications Commission Act (CRTC Act). It is also assigned broad responsibilities under both the Broadcasting Act , whose scope is currently audio and audiovisual content transmitted in Canada and the Telecommunications Act , which deals with all other electronic communications in Canada. Both statutes establish a series of policy objectives and make the CRTC responsible for ensuring that Canada's communications environment meets them.

Under the Telecommunications Act , the CRTC is empowered to supervise telecommunications service providers, particularly carriers that own or operate a physical communications network, in accordance with the stated policy objectives. Currently, the CRTC's primary regulatory tools relate to the rates charged for telecommunications services, interconnection and access to carrier networks, use of rights-of-way over public land, unjust discrimination or undue preferences exercised in the marketplace, and control over content. The forbearance powers under the Telecommunications Act provide guidance as to when to refrain from exercising these tools. Further, the Act provides the CRTC with enforcement powers, including the ability to impose Administrative Monetary Penalties (AMPs).

Although the Broadcasting Act makes much use of the word "broadcasting," its statutory meaning parted ways long ago with the term's ordinary sense of one-to-many or over-the-air transmissions. The CRTC is required by the Broadcasting Act to regulate and supervise all aspects of the Canadian audio and audiovisual media environment, with a view to implement the policy that this Act establishes. Its primary regulatory tools consist of licensing or exempting classes of undertakings, imposing conditions of licence or of exemption, and passing regulations. Any change in control of a licensed undertaking is subject to CRTC approval. Audio and audiovisual activity on the Internet is exempt from licensing requirements.

In parallel to the CRTC, ISED houses Canada's radiocommunication regulatory functions. The Radiocommunication Act assigns to the Minister of Industry the responsibility to determine to whom a radio or spectrum licence may be issued and to fix the related terms and conditions. In addition, it also provides the Minister with responsibility for planning the allocation and use of the spectrum. A number of powers with respect to technical aspects of communications regulation are also assigned under both the Radiocommunication Act as well as the Telecommunications Act . In carrying out these responsibilities, the Minister of Industry may have regard for the policy objectives established in the Telecommunications Act .

Two different federal departments supervise regulatory functions with broad policy responsibilities for the communications sector:

ISED has responsibility for telecommunications policy. This responsibility flows from ISED's general mandate to improve conditions for investment, enhance Canada's innovation performance, increase Canada's share of global trade, and build a fair, efficient, and competitive marketplace. It extends to more specific telecommunications policy, supervisory, and review powers under both the Telecommunications Act and the Radiocommunication Act .

and the . The Department of Canadian Heritage has responsibility for broadcasting policy as part of its general mandate to foster and promote Canadian identity and values, cultural development, and heritage. The CRTC submits its annual report of activities to the Minister of Canadian Heritage.

The Ministers of Industry and of Canadian Heritage are both members of, and advise, the Governor in Council (GiC), which is essentially the Prime Minister and Cabinet. The GiC oversees the CRTC in three key ways. First, the GiC may issue to the CRTC binding directions on broad policy matters and on the licensing and use of broadcasting frequencies. Second, the GiC may set aside or refer back to the CRTC any decision to issue, amend, or renew a broadcasting licence, and may set aside, refer back, or simply revise all or part of any CRTC telecommunications decision. Finally, the GiC may require the CRTC to make a report on any matter within its jurisdiction under either Act.

In addition to the political oversight exercised by the Ministers of Industry and Canadian Heritage, and by the appeal avenue to the GiC, the courts provide narrower judicial oversight of communications regulatory decisions. Specifically, CRTC decisions are appealable to the Federal Court of Appeal, with leave, on questions of law or jurisdiction. Decisions made by the Minister of Industry under the Radiocommunication Act are subject to judicial review.

1.3 A reimagined CRTC

1.3.1 A proactive and forward-looking style of regulation

The communications landscape has changed dramatically as a result of technological change, and the role of the CRTC and its approach to regulation must change as well.

As a first step, the terminology in the legislative framework that sets out its responsibilities must be updated, as much of it has not kept up with changes in the digital environment. The landscape in telecommunications has become larger and now includes a broad range of electronic communications services provided over the Internet. Although the term "broadcasting" in the Broadcasting Act was redefined in 1991 to embrace wire as well as radio transmission, the name of the CRTC still dates back to the pre-Internet era. Since 1976, the full name of the Commission has been the following:

The Canadian Radio-television and Telecommunications Commission (CRTC)

Le Conseil de la radiodiffusion et des télécommunications canadiennes (CRTC)

This name is now out of step in a world in which communications have moved beyond conventional radio and television stations. The word "Radio-television" might have been acceptable when "broadcasting" was defined to mean transmission using the radio spectrum only, but the term is no longer appropriate.

The title of the CRTC in the French language also raises problems. The word "radiodiffusion" is used to mean "broadcasting" and suggests that it is limited to transmission by radio.

With these considerations in mind, we propose that the name of the CRTC be changed to the following:

The Canadian Communications Commission (CCC)

Le Conseil des communications canadiennes (CCC)

The word "communications" is a more inclusive word. It already appears in the names of similar regulatory agencies in other countries. Examples include the FCC in the United States, and the Australian Communications and Media Authority (ACMA) in Australia. In the United Kingdom, the regulatory authority is the Office of Communications, commonly known as Ofcom, which describes itself as the regulator for the communications services that we use and rely on each day. Use of the word "communications" in the name of the Canadian communications regulator would signal the recognition of the wider role that the Commission will be playing in the future.

The titles of certain of the statutes under review should also be modernized to reflect their wider scope. While no change is necessary to the Radiocommunication Act , the title of the Broadcasting Act should be changed to the Media Communications Act and the title of the Telecommunications Act should be changed to the Electronic Communications Act. These changes are reflective of the expanded scope of activity in these sectors and corresponding legislative changes that we are recommending.

Recommendation 1 : We recommend that to better reflect the expanded role and responsibilities of the communications regulator and the broader scope of communications legislation, terminology be modernized as follows: The name of the Canadian Radio-television and Telecommunications Commission be changed to the Canadian Communications Commission, and the title of the Act governing the CRTC be changed to the Canadian Communications Commission Act .

The title of the Broadcasting Act be changed to the Media Communications Act .

The title of the Telecommunications Act be changed to the Electronic Communications Act .

1.3.2 An enhanced focus on research and data

Communications services will continue to change — with increasing speed, and in unforeseen ways that will raise issues of public interest. In place of a system composed of a handful of well-known players in well-defined categories, communications markets will feature rapid entry and exit, innovation from all sides, and complex new business models that will be difficult to characterize in consistent ways. The regulatory processes and practices currently in place are not necessarily well suited to address such a dynamic environment. Rapid and continuous change in the communications and broader technological environment demands adaptation and new approaches.

Looking ahead, the CRTC must shift to a more proactive and forward-looking style of regulation. Rather than an administrative tribunal that hears evidence commissioned and presented by third parties, the CRTC must be reinvented with an enhanced focus on strategic foresight and research.

This shift would not only inform the regulatory agenda but also serve as a common and important source of information for all stakeholders. In our view, the CRTC should be mandated and funded to undertake and publish third-party research reports and analyses. These would serve as a primary enabler of evidence to ensure informed participation in regulatory processes. This model is in effect in Australia through the Bureau of Communications and Arts Research; in the United Kingdom, Ofcom is required by legislation to conduct public opinion research regarding a range of matters and has a duty to publish and take account of research. Similarly, the CRTC should publish more extensive data to enable all participants to access reliable, relevant, and consistent information on the markets in question and the issues being considered. This reimagined regulator must have the resources and expertise to analyze large data sets and release reports in machine-readable format that redress information asymmetries between providers and users.Footnote 1

To regulate in such a dynamic environment requires the CRTC to have a deep understanding of, and knowledge base related to, the markets it regulates. To this end, the CRTC should also have an increased role in monitoring market behaviour and outcomes through information gathering and analysis, and through identifying areas where action may be necessary or appropriate. A proactive, strategic CRTC will need to generate and sift through a broader base of information, much of it from non-traditional sources, to identify the most appropriate and targeted action to take.

As the principal communications regulatory body, the CRTC has much of the authority and ability to undertake this shift. Its powers have allowed it to act in an effective, efficient, and proportionate manner to authorize market entry and oversee the state of competition in certain markets, targeting intervention as necessary and appropriate. However, the CRTC does not have the explicit authority to collect information from all service providers that operate in Canada's broadcasting environment as it does under the Telecommunications Act where it has broad powers to obtain and, where necessary, investigate any information reasonably necessary to administer its legislation. We recommend that this power be added to the Broadcasting Act , recognizing that confidential information would remain protected from public disclosure where the resulting harms would outweigh the public interest in it.

Recommendation 2 : We recommend that to provide the CRTC with flexible powers to monitor existing markets and to develop a stronger research and strategic foresight capability, the following amendments be made: The CRTC Act be amended to require the CRTC to maintain accurate market data, and conduct, commission, and publish reports and evidence-based information on key issues and trends for the benefit of all Canadians.

The Broadcasting Act be amended to include information gathering and investigatory powers similar to those set out at sections 37-39 and 70-71 of the Telecommunications Act .

1.3.3 Appointment and role of commissioners

Commissioners will be the individuals leading the CRTC's shift toward a future-oriented, proactive, and data-driven style of regulation built around market monitoring and enforcement. The transformation of the CRTC must extend to the competencies of its Commissioners, to the size and location of their complement, and the style of their ongoing engagement with representative groups that give voice to Canada's diversities.

It is important to note that a number of countries have seen the need to enshrine in legislation the competencies that regulatory Commissioners must possess. In Australia, for example, the Competition and Consumer Act requires that the Treasurer of Australia be satisfied that an appointee to the Australian Competition and Consumer Commission has knowledge of, or experience in, industry, commerce, economics, law, public administration, or consumer protection, before an appointment can be made. It has been proposed that qualifications for appointees to the technical telecommunications regulator, the Australian Communications and Media Authority, also be set out in legislation.

Canada has thus far adopted a different approach, although it has taken several important steps in formalizing the public appointments process in recent years. Job descriptions have been prepared for most Order in Council appointments, which include a statement of the qualifications that must be met. Jobs are then advertised and interested parties must apply. The government has indicated in its advertisements for CRTC Commissioners that preference may also be given to women, Indigenous Peoples, persons with disabilities, and members of visible minorities, to increase the diversity of backgrounds of those who hold public office. Recent appointments to CRTC Commissioner roles were screened against advertisements articulating require