Thank you, Madam Chair.
Thank you for inviting the Forum for Research and Policy in Communications to appear today. We undertake empirical and policy research in communications and participate in a range of CRTC proceedings.
The forum strongly agrees that Canada needs a new statute to serve the public interest by ensuring the availability of and Canadians' access to high-quality Canadian news and entertainment programming and to serve our economy's need for jobs and investment, but we fear that the contradictions, gaps and loopholes that exist in Bill C-11 will thwart Parliament's objectives.
Our written submission recommends changing eight aspects of Bill C-11. As other witnesses have already addressed some of these issues, I will highlight just three points today.
First, while the current Broadcasting Act and Bill C-11 state that the best way to implement Canada's broadcasting policy is through a single independent public authority, Bill C-11 erodes this independence by handing cabinet the power, in proposed subsection 7(7), to override the CRTC when it exercises any or all 39 of the CRTC's powers in part II.
Proposed part II.2 also lets cabinet regulate eight administrative violations. Bill C-11 also leaves intact the existing limit on CRTC decision-making independence, enabled by the chairperson's power to “decide who decides”—that is, which CRTC commissioners may actually make decisions. Rather than weakening the CRTC's decision-making independence, Bill C-11 should strengthen it.
Second, gaps in Bill C-11 will make current serious problems with the CRTC's transparency, accountability and timing even worse. The section 5 regulatory policy now ignores the public interest and discourages the CRTC from regulating if doing so may be a “burden”. It is next to impossible for the public to refute claims about future burdens or to make the case for stronger regulation to implement the broadcasting policy. Despite collecting programming data from Canadian radio and TV programming services for half a century, the CRTC has not published such data in decades.
Bill C-11 should require the CRTC to report annually on section 3's implementation to enable oversight by Parliament and Canadians alike, and should set a more rational test for undue regulatory burdens. Bill C-11 does propose that the CRTC publish relevant evidence before consultations affecting minority-language communities, but it should do so before all consultations, and CRTC determinations should be signed by those who make them.
As for timeliness, divining when the CRTC will decide matters is now based on guesses or gossip. Bill C-11 ignores this problem and makes it worse, since those accused of administrative violations may wait forever to be formally cleared of wrongdoing. The bill should require the CRTC to complete its investigations within a reasonable period. In brief, this bill is a rare opportunity to reduce problems with the CRTC's transparency, accountability and timeliness.
Finally, drafting loopholes may, in any event, stymie Bill C-11's implementation. In particular, proposed paragraph 2(2.3)(a) excludes online programs that are “ancillary” to a business's primary activities. This may simply encourage creative business structuring and court challenges, and is at odds with the existing requirement in section 9 that the CRTC exempt broadcasters unable to contribute materially to the broadcasting policy. Requiring off-line but not online distributors to negotiate reasonable terms of carriage with programming services will simply hurt, if not kill off, Canada's small and medium-sized domestic programming services, fuelling, in the interim, calls for “me too” deregulation. If Bill C-11 wants the single system envisaged in subsection 3(2), it should clearly define its reach and treat “like” media alike.
To conclude, our fear is that, if left as written, Bill C-11 will simply not achieve Parliament's stated objectives, and that, even worse, court challenges of its implementation by the CRTC will create long delays and cost Canada and those working in its creative sectors quite dearly.
Fixing Bill C-11's drafting problems will strengthen Canada's communications system by ensuring that it is an independent regulatory authority actually serving the public interest by making evidence-based decisions in a fair and timely manner.
We strongly support the general purpose of Bill C-11, but thoughtful revision now gives you the opportunity to craft outstanding 21st-century legislation. We are confident that this is your committee's intent.
Thank you.