Canada: From Broadcasting To Telecommunications And Everything In Between: Reflections On The Recent New Developments In Communications Law And Policy Conference

We recently attended the 18th Biennial National Conference: New Developments in Communications Law and Policy, a national symposium of the Law Society of Upper Canada and the Entertainment Media and Communications Law section of the Canadian Bar Association.  This conference is always a stimulating and fascinating opportunity to share thoughts with colleagues in the Canadian communications sector.  This year's event was no exception.

Day One: Broadcasting, Privacy and Data

The conference kicked off with a plenary session on the state of the Canadian rights market.  Jay Kerr-Wilson and Ariel Thomas, both of Fasken Martineau DuMoulin LLP, explained how the existence of a distinct Canadian rights market was not an accident: it was the product of regulatory interventions designed to support it, beginning with the creation of the Broadcasting Act and the associated Canadian ownership and simultaneous substitution rules.  But, in the age of global over-the-top program delivery, with a major cultural policy review about to begin, important questions need to be asked and answered.  University of Ottawa law professor Jeremy de Beer noted that the rights market initially evolved to serve cultural policy objectives which are distinct from the economic interests of market participants.  In order to figure out the appropriate response, we first have to be clear on what we are trying to accomplish.  Susan Wheeler, vice-president (regulatory media) at Rogers Media Inc., agreed that the upcoming review offered an important opportunity to set out clear policy goals and to ensure that the tools available were adequate to meet them.

Following the opening plenary round, the conference broke into parallel streams.  One session picked up on themes from the plenary, with a deep dive into the changing landscape of broadcast regulation in Canada.  Ottawa communications lawyer Joel Fortune began with a review of some significant CRTC decisions dealing generally with concentration of the broadcasting sectors, ultimately leading to the Wholesale Code.  He then considered current challenges facing independent broadcasters in particular and what hints as to what the future regulatory direction might be.  Corus Entertainment's general counsel Gary Maavara noted that traditional broadcasting remained very strong in Canada, and challenged the audience (and policy-makers) to avoid the assumption that we were trapped in a zero-sum game.  Vice-president (broadcast policy and regulatory affairs) at TELUS Communications Ann Mainville-Neeson emphasized the importance of exporting content and competing globally and stressed the policy should seek to create level playing fields.  Kevin Goldstein, vice-president, regulatory affairs, content and distribution, Bell Media, discussed the state of pick-and-pay, stating that it was where the industry was heading eventually, but stressing that market choice should also involve market pricing.

In a concurrent session, Canada's former privacy commissioner Chantal Bernier (now of Dentons LLP) presented a paper on big data, arguing for a fair deal for both marketers and consumers. Through the lens of Canada's codified privacy principles, the paper explored how data that includes personal information can be used legally and what restrictions follow. Specifically, Ms. Bernier noted how use of personal information can be linked to "customer intimacy." But, as with any intimate action, consent is necessary. Accordingly, she argued a "fair deal" for big data must be based on valid and informed consent. David Elder of Stikeman Elliot LLP moderated the ensuing panel discussion. Google's Head of Public Policy and Government Relations Colin McKay spoke of data as an asset that is necessary to innovation and the public good, noting for example the use of data to improve health care. Regan Morris, legal counsel at the Office of the Privacy Commissioner of Canada questioned whether existing privacy laws were sufficient to deal with the big risks associated with big data. He noted that, when big data involves personal information, marketers have incentives to make predictions about specific individuals.

Over lunch, Jeffrey Campbell of Cisco commented on the state of Canada's IP networks.  The good news was that, compared to other countries, Canada's "network readiness" was strongest in the areas that were hardest to fix.

After lunch, the streams separated again for a final session.  On one side, our colleague Kirsten Thompson presented her paper on legal challenges relating to the Internet of Things.  Corinne Charette, Senior Assistant Deputy Minister of Innovation, Science and Economic Development Canada, noted that machine-to-machine (or M2M) communication is not entirely new.  But what has changed is that, increasingly, M2M communication is now self-initiated.  Humans are no longer necessarily aware of the information that is being transmitted and this challenged the ideas of transparency and consent.  Senior general counsel at the Office of the Privacy Commissioner of Canada Patricia Kosseim asserted that meaningful consent requires the existence of alternatives and wondered what would happen when the market no longer offered the ability to turn the devices off.  Bruce Gustafson, principal at Loquitor Group, noted that the view into large scale systems like cities and transportation networks provided by widespread instrumentation with sensors would change how we organize our societies.  But he also noted that not all changes benefit everyone.  He cited in particular the example of how apps like Waze have redirected vehicular traffic from major arteries to suburban environments.

The concurrent session looked at the regulatory and competitive challenges in Canada's wireless market. Dr. Jeffery Eisenach, senior vice-president, NERA Economic Consulting, presented his paper on a proposed regulatory framework for the digital ecosystem, which is made up of three key characteristics: modularity, economies of scale and scope and dynamism (dynamic competition). The discussion included both industry and regulatory challenges associated with digital convergence. Specifically, Dr. Eisenach argued that regulatory discrimination impedes competition by discarding certain innovations, requiring organizations to disclose proprietary information, and increasing the time to market.  Kirsten Embree of Dentons LLP moderated the panel discussion that included remarks from Bell Canada's Director of Regulatory Affairs Serge Bertuzzo and Wind Mobile's Chief Regulatory Officer Bob Boron.

Day 2: Professionalism and Telecommunications

Day two began with the first of two professionalism sessions, offering career advice to early-stage practitioners. PGYA Consulting's Colin Lachance offered three tips: expand your definition of success; expand your idea of what a lawyer should do; and expand your understanding of outside forces.  Former senior vice-president at Rogers Communications Ken Englehart stressed that it was important to do what seemed like fun, but that one should always try to take on the "ugly" files. Toronto communications lawyer Monique Lafontaine emphasized the importance of developing a network, for junior and senior practitioners alike.  And director of regulated agreements at TekSavvy Solutions Andy Kaplan-Myrth noted that a career path is often only visible in hindsight.

The next session focused on Net Neutrality.  This topic had been lurking in the background of a number of the previous sessions, with various speakers alluding to it in passing.  But this session took it head-on.  Bram Abramson, chief legal and regulatory officer at TekSavvy Solutions, distinguished wholesale access, network interconnection, and market competition from network neutrality, arguing that regulators have perhaps not established an adequate framework for the policy analysis.  Russel Blau of Morgan Lewis & Bockius LLP (Washington D.C.) described the regulatory history in the U.S., noting that the FCC's presumption is that there will not be enough retail competition to eliminate the need for net neutrality regulation.  Ted Woodhead, senior vice-president (federal government and regulatory affairs) TELUS Communications stated that, from his perspective, the whole issue was a red herring, dreamed up by law professors to address theoretical harms. CIPPIC's Tamir Israel disagreed, reviewing the long history of common carriage principles and explaining how the Internet's ability to function as an incubator of innovation was linked to its architectural design.

At that point, the streams diverged again.  One stream considered whether national security reviews were becoming a de facto means of regulating foreign ownership.  The panel, featuring Michael Koch of Goodmans LLP, Anne Salladin of Stroock & Stroock & Lavan LLP, as well as Ray Boivert, a senior associate at Hill + Knowlton Strategies, generally agreed this was not the case.  Although certainly security oversight was increasingly important in Canada, and elsewhere, this was a sensible reaction to real concerns and not a colourable attempt to disguise trade or industrial policy.

The concurrent panel tackled the role of the CBC as Canada's public broadcaster, including what media platforms the CBC should focus on, its mandate to foster culture and diversity, and how it can coexist with and thrive against the private sector. Christopher Taylor moderated the panel discussion by founder Steve Anderson, adjunct professor and former "CBCer" Sylvain Lafrance, and CEO of Blue Ant Media Inc. Michael MacMillan. All agreed that the CBC needs a long-term funding commitment from government to be able to plan and execute meaningful operations. Mr. Anderson discussed the modern CBC as a public media platform, rather than a broadcaster. As a long-time employee of the CBC, Mr. Lafrance reflected on his realization – after leaving the CBC – that the organization could do a better job of partnering with external groups. Mr. MacMillan explained that public broadcasting is a public good and the CBC represents a public space. He stressed that elected Parliamentarians, not private actors, should make decisions about the CBC's role.

The lunchtime keynote address from Jeffery Simpson surveyed the new federal government's ambitious policy agenda, noting the remarkable number of major policy reviews that have been announced.  In this context, although Minister Joly's announcement of a cultural policy review took many observers by surprise, Simpson argued it was typical of this government's approach.

The final panel of the conference was a professionalism session on social media and the practice of law. CRTC staff lawyer Crystal Hulley presented a thoughtful paper considering how much of the commentary on this subject was built on presumptions that made sense in a judicial context, but that might need some modification for administrative law practitioners. Dentons LLP counsel Bob Tarantino made an impassioned plea for lawyers to set aside their fear of participating in public debate and to take advantage of the opportunities offered by social media.  While University of Ottawa law professor Michael Geist argued that, if encouraging public participation in administrative proceedings was the goal, procedural rules should be revised to fully integrate social media into the record.

This last point elicited a lively response from the floor, with commenters questioning the fairness implications of direct social media interactions between parties and the tribunal, the ability to drown out or distract from the submissions of the parties, and the challenge of how to properly digest and respond to a record that might contain thousands or tens of thousands of social media submissions.  In a sense, this exchange was a perfect capstone to the conference: it offered thoughtful and creative attempts to reconcile principles with practicality.

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