Timothy M. Denton

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Our disappearing commissioners: how many is enough?

Posted by on in Industry News
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The CRTC was envisaged to be governed by a chairman making decisions with the assistance and agreement of a number of commissioners, insofar regulatory policies are concerned. Otherwise I could see no need to mention their existence in the CRTC Act.  The law allows for the appointment of up to 13 of them. The Governor in Council appoints one of them to be a chairman and another two may be appointed vice-chairmen of broadcasting and telecommunications.

With thirteen commissioners, meetings start to have the dynamics of a mini parliament rather than a board of directors. It is not too cynical to suggest that, in former times, appointments to the CRTC allowed the government a large pool of patronage appointees. The Broadcasting Act generates a degree of regulatory busy-work that easily kept many panels of regulators occupied with the relatively trivial range of intensely fought issues within the closed world of Canadian broadcasting.  

With the decline of broadcasting (as an advertizer-supported business model), one might be tempted to think that the Commission's work is declining. Not so.

Despite the hostility of the former Tory government to the CRTC, it kept throwing new tasks in the Commission's direction. Anti-spam legislation called for the creation of a panel which set the administrative monetary penalties. Disputes among vertically integrated broadcasting undertakings required commissioners to hear issues and make recommendations to the full commission. Telecommunications regulation maintained its volume of work, even as the focus shifted from exclusively carrier/consumer concerns to Internet-related issues.

There was no lack of work. But did we need thirteen commissioners?

The Conservatives failed to reappoint what were called "national commissioners", of whom there were four. These commissioners has no specific responsibilities to consult with or be the spokesman for broadcasters in certain regions, thus bringing the number of Commissioners down to nine.

Quite recently, it was announced that the office space and administrative assistance provided to the six regional commissioners will be terminated, meaning that their administrative staff, if any, will work in Gatineau. The physical offices of the regional commissioners in various cities across Canada will be closed. In one sense this is only a natural evolution towards the home office, but in another, it marks a significant downgrading of the status and importance of regional commissioners. Industry  representatives are hardly likely to meet in a commissioner's dining room, and entertainment and travel expenditures can be tightly controlled by the Chairman, if he wants to.

Which raises the question: will the CRTC ultimately become a one-man show, with a Chairman constituting the sole decision maker? It is easily conceivable. It might even be desired by the current chairman of the CRTC. The Competition Bureau functions with one Commissioner and a Deputy. Why should not the CRTC?

At the moment the minimum number of Commissioners who can compose a panel is three, under section 20 of the Broadcasting Act. I am uncertain whether this provision applies to decisions made under the Telecommunications Act so that, if it did not, there might be no need for panels under that statute. I doubt this result because the language that authorizes the Chairperson (in Newspeak) of the Commission to appoint panels makes no distinction between broadcasting and telecom matters.

Would a three-man commission work? Possibly, but it should be noted that the United States' FCC is governed by five commissioners. They also have a floor full of administrative law judges who do much of the work that is done by Commissioners in the CRTC, so the analogy is not apt.

I hold no particular preference for regional over national commissioners. National commissioners would in principle be present in Ottawa and might develop an esprit de corps more readily than if commissioners were geographically dispersed, but I do not attach much importance to the benefits of living and working in Ottawa or of commissioners living elsewhere, from the point of view of efficiency. Nevertheless, the volume of work, the regional nature of appointments, the existence of a French linguistic and cultural element comprising at least 20% of the population, and, of paramount importance,  the inestimable benefits of argument and parliamentary discussion strongly militate in favour of having at least five and maybe nine commissioners. To concentrate all decisions in one person would subvert the scheme of the Acts, but my argument is not based in what the statutes say. More important by far, the need to argue one's case with colleagues, and to persuade them, has the effect of reducing errors and the effects of biases, and subjecting every commissioner to the salutary effects of [mostly] rational discussion.

Consequently, to rid oneself of Commissioners is to rid oneself of the need to persuade or cajole one's equals or to endure their opinions. I rather suspect this is the direction in which the Commission is headed. Time will tell.
















If 13 commissioners is too many, what is the number which is too few?



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Timothy Denton is a lawyer by training who practices principally in telecommunications and Internet policy and domain name issues, with a strong concentration on explaining what the technology is and what it means.


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