Timothy M. Denton

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The contradiction at the heart of Canadian communications policy

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Mobile television apps are now before the CRTC. They put the question at the heart of Canadian communications policy front and centre: will carriers be able to evade net neutrality rules whenever they declare their signal to be "broadcasting"?

There is a contradiction between the two statutes the CRTC administers. The Broadcasting Act says "go forth and discriminate infavour of Canadian programming". The Telecommunications Act says "thou shalt not discriminate among signals except for very good reason, and the CRTC will rule on the adequacy of that reason".

This is not a small or trivial contradiction; it goes to the essence of the regime each statute establishes. Before digital technology, and especially before the Internet, the contradiction was containable by separate transmission silos, which, being architectural in nature, kept the regimes apart.

Today, the separate architectures of signal transmission have been abolished. Internet protocol has the general effect of making transmission media fungible. Thus, the only reason why something is "broadcasting" is that the carrier says it is. And if it is, then all the bandwidth it has can be used to favour its own programming or other people's content  in relation to which it has a favoured contractual relationship. Good bye any notion of net neutrality.

According the the National Post,

"BCE argues that the Internet traffic management doesn't apply to its Mobile TV product, which it says is a broadcaster and therefore not governed by telecommunications rules that apply to Internet access."

By its own say-so the carrier can make traffic "broadcasting" and therefore it has every right to favour its content over that of others'. There is nothing illegal with this process. It is what the Broadcasting Act calls for. The claim that they are not favouring their own content in this mix, however true, is not the point. Given the scarcity of spectrum, the amount available for Internet uses (which are non-discriminatory) must be reduced by the amount made available for broadcasting.

"We need the ability to experiment and develop solutions that will give customers a reason to try these new platforms and remain a part of the regulated system", Mr. Engelhart said.

All true and good, I suppose, but if an Internet service is subject to data caps and a broadcasting service is not, the discrimination occurs in pricing. We return to the issue: can a "broadcaster" escape traffic-management/net neutrality rules by reserving some of its spectrum for broadcasting at the expense of what is available for Internet uses?

Canada will not see the end of such issues as long as the regime envisioned by the Broadcasting Act remains.

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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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Guest Thursday, 29 June 2017
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