Welcome

Posted on March 31, 2011

Welcome to Canadian Communications Law, the newest blog from Stikeman Elliott LLP.

Drawing on the knowledge and experience of our Communications Group, this blog will feature information and commentary on a variety of legal, legislative and policy developments in the area of communications, including:

  • Radio and television broadcasting
  • Cable and satellite distribution
  • New media and internet content
  • Broadcasting and internet copyright issues
  • Wireline telecommunications
  • Wireless telecommunications and spectrum licensing
  • Convergence issues
  • Competition in broadcasting and telecommunications markets
  • Transfers of ownership and Canadian ownership requirements
  • Unsolicited telecommunications, Do Not Call List and anti-spam requirements

In addition to a number of current posts, we are launching the blog with a few recent posts relating to communications law, previously posted on our sister blog, Canadian Technology & IP Law, that readers may find of interest.  Our Archives also include a number of articles originally published as client bulletins.

We invite you to subscribe to the blog via RSS or eMail, or just stop by occasionally to see what’s going on.  We would also welcome your comments on what you’ve read here, or what you’d like to read here.

Election call puts communications laws and policies in limbo

Posted on March 28, 2011

By David Elder -

Last week’s non-confidence vote meant not only the fall of the government and the dissolution of the 40th Parliament, but the death of a number of important communications-related bills and policy initiatives.

In a recent blog post, Professor Michael Geist provided an inventory of incomplete government initiatives, noting that it is unclear when – or if -- some of these may be reintroduced following the election.

Here’s our take on which of the Harper government’s communications-related initiatives may be truly dead, and which, like the Monty Python parrot, may be “just resting.”

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Supreme Court to consider whether ISPs are broadcasting undertakings

Posted on March 25, 2011

David Elder -

The Supreme Court of Canada has announced that it will hear an important “convergence” case respecting regulatory treatment of Internet access to broadcasting content.

On March 24, the Court granted leave to appeal last summer’s judgement of the Federal Court of Appeal, which found that Internet Service Providers (ISPs) do not carry on “broadcasting undertakings”, within the meaning of the Broadcasting Act, when they provide access through the Internet to broadcasting material requested by users.

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Bill introduced to assist investigations in light of new technologies

Posted on March 23, 2011

Sharon Seung -

Bill C-51, An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act (short title: Investigative Powers for the 21st Century Act) was re-introduced in the House of Commons on November 1st, 2010. As the short title of Bill C-51 implies, the bill aims to extend the current investigative powers of national law enforcement and security agencies for computer-related crimes to take into account the use of new communications technologies. While many of the proposed changes relate to the Criminal Code, they have an impact on the Competition Act and the investigative powers of the Commissioner of Competition.

Two other bills, Bill C-50, An Act to amend the Criminal Code (interception of private communications and related warrants and orders) and Bill C-52, An Act regulating telecommunications facilities to support investigations, were also introduced in October and November of last year. These three complimentary bills had previously been introduced under the former Liberal government in 2005, and under the Conservative government in 2009, but were killed by elections or prorogation.

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Déjà vu all over again: CRTC considers re-imposing payment of benefits on BDU transactions

Posted on March 11, 2011

David Elder -

In a brief amendment to the Notice of Consultation that initiated the upcoming vertical integration hearing, the CRTC has quietly added to the issues for discussion the possibility that benefits payments may be required in future applications for authority to transfer the ownership or control of broadcasting distribution undertakings (BDUs), but the low-key nature of the announcement belies the potentially significant impact of such a change in policy.

The re-imposition of the benefits test on BDU transactions could result in significant new costs to those acquiring distributors, potentially creating a chilling effect on such transactions, driving down prices or even acquisitions altogether.  On the other hand, the revived stream of financial contributions could have material benefits for other aspects of the broadcasting system, including programmers, program producers and viewers.

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CSI proposes tariffs for non-commercial radio stations (2011), online music (2011), and satellite radio (2011-2013)

Posted on March 01, 2011

On July 17, 2010, CSI, the company formed as a royalty-collection vehicle by the Canadian Musical Reproduction Rights Agency (CMRRA)  and the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) , proposed three new tariffs which would apply to the reproduction of music (which can include broadcasting, streaming and downloading) by non-commercial radio stations, online music providers, and satellite radio providers.

In the proposed CMRRA-SODRAC Inc. Non-Commercial Radio Tariff, 2011, CSI is requesting that the Copyright Board of Canada  certify a tariff of 0.63% of the annual gross operating costs of radio stations that are either owned or operated by not-for-profit corporations, excluding the Canadian Broadcasting Corporation.  In the case of such a non-commercial radio station that is a “low use station” (generally, a station that plays music for less than 20% of its broadcast time), the tariff would be lower, at 0.23% of its annual gross operating costs.  In exchange for the payment of the tariff, the non-commercial radio stations would receive a license to broadcast music contained in CSI’s repertoire as often as desired, including the streaming of the broadcast over the Internet.

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A change in the Wind: Federal Court reins in cabinet power to vary CRTC decision on foreign ownership

Posted on March 01, 2011

David Elder -

In the latest chapter in the ongoing saga of the eligibility of foreign-backed telecommunications carriers to operate in Canada, the Federal Court of Canada has quashed a decision of the federal cabinet that found that Globalive Wireless Management Corp. (Globalive) met Canadian ownership requirements under the Telecommunications Act. 

The Court’s decision in the case of Public Mobile v. Attorney General of Canada et al  threatens the ability of a new wireless entrant to operate in Canada, effectively lowers the amount of foreign investment that is acceptable under Canadian ownership rules for telecom carriers and offers new guidance respecting the scope of the federal cabinet to overturn the decision of an administrative tribunal.

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CRTC considering relaxing prohibition on broadcasting misleading news.

Posted on March 01, 2011

In a Broadcasting Notice of Consultation issued on January 10, the CRTC indicated that it is seeking comments for the amendment of several regulations to allow for more leeway in broadcasting false or misleading news. According to the CRTC, it is considering these amendments because of the Parliament’s Standing Joint Committee’s concern that the existing prohibitions on broadcasting false or misleading news is too broad and vague. Fearing that it would not withstand a Charter challenge, the CRTC was urged by the Committee to revise the language of the regulations.

Currently the regulations prohibit the broadcasting of “any false or misleading news” whereas if the proposed language to the amendments were accepted, it would lower the standard to "any news that the licensee knows is false or misleading and that endangers or is likely to endanger the lives, health or safety of the public." In other words, a broadcaster would be permitted to air news that it knows is false or misleading as long as it does not endanger the lives, health or safety of the public.

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Federal Court of Appeal says broadcasting policy trumps copyright law: CRTC has power to allow local broadcasters to demand fee for carriage

Posted on March 01, 2011

David Elder -

“Free-to-air” local television signals may no longer be free to cable and satellite subscribers, following a recent court decision affirming the scope of the powers of the Canadian Radio-television and Telecommunications Commission (CRTC) under the Broadcasting Act.

In an important ruling that addresses the intersection of broadcasting and copyright law and policy, a majority of the Federal Court of Appeal found, in the case of Reference re the Canadian Radio-television and Telecommunications Commission’s Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2011 FCA 64, that the Copyright Act permits the CRTC to limit the statutory retransmission rights of broadcasting distribution undertakings (BDUs), such as cable companies, by imposing any regulatory or licensing condition that is consistent with the Commission’s statutory authority under the Broadcasting Act. In fact, the majority went so far as to state that Parliament has ranked the objectives of Canada’s broadcasting policy ahead of the statutory retransmission rights granted to BDUs under the Copyright Act.

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