Canada: Fasken Communications Law Triannual Update
Communications Bulletin

Top News

• The Canadian communications landscape began 2023 with a change at the top of the Canadian Radio-television and Telecommunications Commission (CRTC), as Vicky Eatrides took her place as the new Chair on January 5. Eatrides will be supported by a team of new Vice-Chairs in Alicia Barin (Broadcasting) and Adam Scott (Telecommunications). The CRTC's senior leadership team can be found here.
• The Rogers-Shaw merger received final approval in March, 2023 when Industry Minister François-Philippe Champagne approved the transfer of spectrum licences from Shaw's Freedom Mobile to Quebecor Inc.'s Vidéotron. The $26 billion transaction closed on April 3, 2023. Fasken's Communications Law team was pleased to support Rogers and Shaw in seeking key telecommunications and broadcasting regulatory approvals at Innovation, Science and Economic Development Canada (ISED) and the CRTC since the transaction was first announced in March 2021.
• On the legislative front, Bill C-11 - the Online Streaming Act received Royal Assent at the end of April after working its way through the parliamentary process for over two years. This was followed swiftly by the CRTC issuing its Regulatory Plan to modernize Canada's broadcasting system, containing a plan with a phased approach to important consultations. The CRTC subsequently issued three Broadcasting Notices of Consultation with important deadlines in June, 2023:
  • CRTC 2023-198, The Path Forward – Working towards a modernized regulatory framework regarding contributions to support Canadian and Indigenous content
  • CRTC 2023-139, Proposed Regulations for the Registration of Online Streaming Services and Proposed Exemption Order regarding those Regulations
  • CRTC 2023-140, Review of exemption orders and transition from conditions of exemption to conditions of service for broadcasting online undertakings

In other significant legislative news:

• Bill C-26, An Act respecting cyber security, amending the Telecommunications Act and making consequential amendments to other Acts passed second reading in the House of Commons in March, 2023 and was referred to the Standing Committee on Public Safety and National Security.
• Bill C-27, An Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act and to make consequential and related amendments to other Acts passed second reading in the House of Commons in April and was referred to the Standing Committee on Industry and Technology.

Neither Committee has commenced their respective studies at the time of publication.

CRTC

Regulatory Policies

• Telecom Regulatory Policy CRTC 2023-31 - Regulatory measures to make access to poles owned or controlled by Canadian carriers more efficient – The CRTC released its long-awaited regulatory policy outlining measures to make access to poles owned or controlled by Canadian carriers more efficient. Among other things, the Commission established specific timelines for each step of the access permitting process and introduced a "one-touch make-ready" regime.

• Telecom Regulatory Policy CRTC 2023-41 - Mobile wireless service plans that meet the needs of Canadians with various disabilities – The CRTC undertook targeted actions to ensure that accessible wireless service plans meet the needs of persons with disabilities.

Notices of Consultation

• Broadcasting Notice of Consultation CRTC 2023-72 – Notice of Hearing – The CRTC has set down June 28, 2023 as the date for a public hearing on applications from two Nunavut-based TV stations for mandatory carriage under s. (9(1)(h).
• Telecom Notice of Consultation CRTC 2023-89 - Call for comments – Broadband Fund policy review – The CRTC is calling for comments in its Broadband Fund policy review, with initial interventions due on July 21, 2023. The Commission is seeking comments from "anyone with an interest in connectivity in rural and remote environments" related to, amongst other things, modifying the overall objectives of the Broadband Fund and implementing an Indigenous-specific funding stream.
• Telecom Notice of Consultation CRTC 2023-56 - Notice of hearing – Review of the wholesale high-speed access service framework – The CRTC commenced its review of the regulatory framework for the provision of wholesale high-speed broadband access (HSA) services. The Commission announced a number of preliminary views including that the incumbent telephone companies (ILECs) and large cable companies should provide aggregated wholesale access to fibre-to-the-premise (FTTP) facilities. The Notice was released on the same day as the Commission issued decisions holding that it would not expand mandated disaggregated wholesale access and denying a request for immediate temporary wholesale access to retail Internet services provided over FTTP facilities at retail rates less 25%.
• Telecom Notice of Consultation CRTC 2023-48 - Call for comments – Facilities-based wholesale mobile virtual network operator (MVNO) access tariffs – Considering the inclusion of additional retail market segments – In March, the CRTC initiated a consultation on whether enterprise and IoT/M2M retail market segments should be included in the Commission's wholesale MVNO access policy framework.

Decisions and Orders

• Telecom Decision 2023-23 - Competitive Network Operators of Canada – Application to review and vary Telecom Regulatory Policy 2021-239 – The CRTC denied an application asking it to reverse its decision that fibre in-building wire is not an essential facility and that access to this facility should be forborne from regulation.
• Broadcasting Order CRTC 2023-84 – Broadcasting Licence Fees – Part 1 – In March, the CRTC announced that the estimated total broadcasting regulatory costs of the Commission for the 2023-2024 fiscal year are $34.228 million. Licensed broadcasting undertakings that are required to pay Part I licence fees will have their licence fees set based on this amount.

ISED

• SAB-003-23 – Moratorium on Certain Spectrum Licence Transfers – On March 31, 2023, ISED announced a moratorium on consideration of new applications for certain transfers of commercial mobile rate spectrum pending a review of its transfer framework for this spectrum in view of changes to the spectrum landscape over the last 10 years.
• Consultation on the Spectrum Licence Renewal Process for Wireless Communication Services (WCS) Licences – In March, ISED initiated a consultation on the renewal process for certain existing wireless communications service (WCS) spectrum licences in the 2305-2320 MHz and 2345-2360 MHz frequency bands, which were originally assigned by way of auction.

• Decision on a Non-Competitive Local Licensing Framework, Including Spectrum in the 3900-3980 MHz Band and Portions of the 26, 28 and 38 GHz Bands – ISED issued its decision on the non-competitive licensing framework for the referenced bands, including the licensing process (first-come, first-served), license areas, conditions of licence, fees, deployment requirements and protection of satellite earth stations (where applicable).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.