® InfoJur.ccj.ufsc.br

Square Pegs and Round Holes:
CRTC Regulation of the Internet

Notice: This legal research paper is prepared as a service for our clients and other interested parties. It is not intended to be a complete statement of the law or an opinion of our firm. Although we endeavour to ensure its accuracy, it should not be acted upon without a thorough examination of the law after considering the facts of a specific situation. This paper is current only as of its date.

By: Michael S. Koch [*]

 

 

Posted: July 1996 What rice is to the Japanese, what wine is to the French, regulation is to the Canadians. When any new phenomenon appears on the horizon, whether it's in vitro fertilization or superconductivity, our first response is always the same: how do we regulate this sucker?[fn1]

Introduction

This may be the only piece you read on the subject of the Internet that doesn't begin with a head-rotating, mind-bending description of the powers of the Internet and the way in which it will change all of our lives forever. For I have been given the rather prosaic subject of "CRTC regulation of the Internet". Of course, prosaism is largely in the eye of the beholder; many Wired-reading, pocket protector-wearing, e-mailing, downloading (perhaps even Globe and Mail-reading) denizens of the Internet would be deeply offended by the mere contemplation of regulation of the Internet, let alone regulation by the Canadian Radio-television & Telecommunications Commission ("CRTC" or "Commission").

This paper approaches the problem from the uniquely-Canadian perspective alluded to by Robert Fulford. Namely, it examines whether the CRTC can regulate the Internet before it examines whether it should. The word "can" is used here to convey "legally has the jurisdiction to". The issue of the potential inefficacy of such regulation is treated as an (albeit important) sub-set of the "should" question.

An analysis of the Broadcasting Act [fn2] reveals what is theoretically a very broad jurisdiction for the CRTC over all analogies to broadcasting, including, arguably, those presented by certain uses of the Internet. However, a contextual analysis of the legislation and its purposes leads to the conclusion that the CRTC should not use its powers under the Broadcasting Act to regulate these uses. In addition to an analysis of the CRTC's jurisdiction and powers under the Broadcasting Act, an overview of the practical implications of regulation of the Internet also points to the extreme difficulties and ultimately, failure likely to be encountered by the Commission in applying the Broadcasting Act to the Internet.

By contrast with the Broadcasting Act, it can hardly be argued that the Telecommunications Act [fn3] does not apply to the provision of Internet service to the public. However, as this legislation focuses on the regulation of facilities-based carriers, rather than specific services, it in practice only affects those telecommunications common carriers already subject to regulation. While the Telecommunications Act has, up to this point in time, played a seemingly innocuous role in regulation of the Internet, two significant developments on the Internet threaten to change this situation. The first is the entry of the telcos (i.e., members of the Stentor alliance) or their affiliated companies into the Internet service provider market. The second, and more ominous development for the regulatory structure over telecommunications as a whole, is the prospect of Internet telephony.


Footnotes

* I wish to acknowledge the invaluable research assistance of Robert Dilworth and the helpful comments of Carolyn Pinsky, Bernard Mayer, Hudson Janisch and Dale A.J. Dietrich, with whom I had the opportunity to discuss some of the ideas in this paper.

1. R. Fulford, "As a Rule, Canadians Love to Regulate" The Globe and Mail (22 December 1993) C1.

2. S.C. 1991, c. 11 [hereinafter Broadcasting Act].

3. S.C. 1993, c. 38 [hereinafter Telecommunications Act ].

http://www.smithlyons.ca/it/crtc/index.htm