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Canadian Radio and Television Commission: Comments on the Law Reform Commission of Canada Study Paper on the CRTC

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By way of a one-line executive summary, we found the study paper quite interesting and useful, although in a limited way.

Despite the benefits of inside knowledge that have accrued in the study, the fact that the author is a former legal counsel of the commission, for what should be a critical study of the commission’s practices and procedures. troubled us considerably. This concern was not allayed by the author’s note that he is now representing the interests of clients regulated by the commission. Most particularly, the note does not take into account the interests of individual citizens and of citizens as a whole (the public) in their relationship to the commission and the implementation of its legislated mandate.

In any case, some major, indeed fundamental, questions relating to the commission’s procedure have somehow been omitted from the study. Of the lesser questions dealt with, we agree with many of the author’s recommendation. On the other hand, there are a whole series of procedural matters here as well which have not been taken up but where reform is equally called for.

We will deal with the major questions first.

Licensing procedure; competitive hearings

The CRTC refuses to hold competitive hearings for broadcast and cable licences when there licences expire of change hands. Our committee finds this highly objectionable in principle and in practice. The commission’s discriminatory procedure is wrong by that fact alone; it is discriminatory and confers special privilege. It represents a definitive impediment to the exercise by citizens of their right to participate fully and adequately in their broadcast licensing system, and through that, in the control and development of broadcast and cable media. This situation, among other things, has serious implications for general freedom of expression.

The question of the right to apply is fundamental. It falls squarely in the area of discussion defined by the study paper itself: “The extent to which the practices and procedures adopted by the CRTC have assisted it to carry out its statutory mandate.” Its exclusion from the study, other than a passing legal note, is quite unfortunate.

There has been over the last few years a growing debate over this question of competitive procedures and the CRTC’s stonewalling of reform. Consideration documentation is now available. We limit ourselves here to pointing out that the Law Reform Commission, in dealing with the CRTC’s practices and procedures, should place a full review of this fundamental procedural matter at the head of its list.

Refusal to answer and to explain; refusal to meet commitments

The CRTC, when faced with matters which bring into question its own practices, may use its discretion to refuse to answer arguments and petitions put before it, to refuse to explain itself, and to refuse to meet commitments that it might have incurred thereto by force of circumstances.

The matter of competitive procedures, above, is perhaps the most notable case. Through several important licence decisions, the CRTC, in its decision, simply refused to deal with the question, prior and basic as it was, although it was put forward and discussed with some care by intervenors. The significance of important decisions being made, involving the allocation of licences, the entrenchment of licencee companies, and ultimately the evolution of the broadcasting system, without essential prior questions having been deal with, is obvious.

Finally, after two years of such conduct, the commission issued a working paper on practices and procedure deal with, among other things, competitive hearings. Submission were invited. A hearing was held. Parties travelled to Ottawa to speak to their briefs. The commission in its working paper, committed itself to “make its findings public and publish drafts of all proposed rules or amendments to rules, and again public comment will be invited….” This, however, never happened. The detailed arguments in favour of competitive hearings, made in connection with the working paper and subsequent hearings, were never answered. The CRTC has continues to make licensing decisions where this issue is involved, some of them of the most serious import, while at the same time continuing to refuse to answer arguments on this essential matter outstanding. This refusal to answer and to explain now goes back five years.

Another case of the CRTC’s refusal to answer and explain that we are familiar with had to do with the use of television commercials for the advocacy of opinions on matters of public controversy, a practice which runs counter to one of the CRTC’s own guidelines. Although the practice complained of, in a brief on the subject, was current and continuing, the commission delayed responding to the brief through a whole fall and winter television season. Then, given legal notice, the commission pleaded complexity and the need for further study and met its statutory requirement by declaring it had decided not to act on the matter at that time. No further explanation, and no answer to the brief’s arguments, were given, although the matter was a quite substantial and important one. This issue, which should have been dealt with immediately, remains outstanding since 1973.

Whatever the pros and cons on any subject, the refusal of the commission to answer and explain, to follow through on commitments, and to respond adequately, objectively and independently on the basis of submissions, represents a serious abandonment of regulatory responsibility. It also seriously undermines public participation in the regulatory process. Intervenors and petitioners who do not get forthright and adequate responses to their submissions on issues outstanding will not for long give the process any credence. In the issue of competitive procedures, the commission’s refusal to answer and explain has, in the view of many informed observers, let to a grave miscarriage of public administration, with attendant damaging effect, historically, on the implementation of the Act.

Divergent functions; parallel agency

The CRTC has divergent functions (some would say an institutional conflict of interest). It is called upon to regulate licencees. It is also called upon to supervise the broadcasting system and, in the capacity, has historically taken on the role of guardian, encourager and protector of licencees, so much so that some critics consider the CRTC a captive of the industry.

The gradual merging of viewpoint of regulatory agency and of industry is not particular to the CRTC. It is a vocational disease general to all regulatory situations. Many of the foremost broadcast regulatory issues in the CRTC’s history, from disclosure of information to competitive procedures, have involved not the commission versus licencees but the commission and licencees versus citizens and public advocacy organizations. Here the CRTC is both defendant and judge. The problem is to make the CRTC more accountable to its statutory mandate.

Moreover, as guardian of the industry and in its quasi-judicial role as overall decision-maker, the CRTC cannot be counted on to collect evidence and challenge the performance of activities of licencees with the vigour and thoroughness required, although that is clearly a regulatory function and one that should not be left to intervenors alone, with their limited resources and procedural rights. In any case, this role and the quasi-judicial role of decision-maker are divergent.

To reform this general situation, some observers have proposed the establishment of a new office entirely separate from the CRTC. This office would play an adversary role in licence renewal and other proceedings before the CRTC similar to the role played by the Director of Investigation and Research, Combines Investigation Act, before the Restrictive Trade Practices Commission. The parallel agency would be financed by taxation of licencees. One of its role would be to fund and assist intervenors.

This proposal has been outlines in the Babe-Slayton Report (Robert E. Babe and Philip Slayton, Competitive Procedures for Broadcasting: Renewal and Transfer, Department of Communications, 1980, pp. VI:16-20), to which we refer you.

Jurisdiction and decentralization

Our Association felt that this was not directly an issue for the BCCLA, a civil liberties association. It was noted, however, that the question of decentralization of jurisdiction was nevertheless of practical importance to the regulation of broadcasting and telecommunications. The jurisdiction over various functions should be most appropriate for the efficient and just administration of those functions and for public participation.

The study paper accepts the jurisdictional situation as it is and makes recommendations for a certain decentralization within it. It seems only common sense that if decentralization is to be considered at all, then decentralization of jurisdiction should also be considered. To artificially limit the discussion at this stage is inappropriate.

Perhaps an historical comment might be useful at this point. The study paper’s generous view of the CRTC’s record is not shared by all and is quite at variance with more independent assessments; see, for example, Robert Babe, Canadian Television Broadcasting Structure, Performance, and Regulation, Economic Council of Canada, 1979. In taking up the above matters and others as appropriate, and in reviewing the study paper, the Law Reform Commission of Canada, in its approach, should assure itself of sufficient critical distance from the CRTC.

We move on to the lesser items. Describing them as such is not to gainsay their importance.

The study paper recommends, among other things:

  1. the separation of policy hearings from the hearing of applications
  2. the postponement of application hearings until application policy is in place
  3. a broadening of the right of cross-examination
  4. notice of the issues
  5. disclosure of commission briefing materials
  6. members who hear applications to make the decisions
  7. members who make the decisions to write the decisions.

We agree with these recommendations.

Costs to intervenors

The study paper describes current practices but makes no specific recommendation. The practice of underwriting costs of intervenors should be substantially broadened and expanded to give intervenors an equal capacity to applicants. The function of funding intervenors, however, should be taken from the CRTC and given to the proposed parallel adversary agency, financed by taxation of licencees.

Full disclosure of information by applicants

We so recommend.

Abuse of rebuttals

Applicants often use their right of rebuttal not only to respond to specific points about their applications but also to attack intervenors, sometimes with outright calumny, and to introduce new allegations, points of fact, arguments and even additional proposals. The intervenor, however, has no right of reply.

The commission, despite the matter having been brought to its attention, time and again allows this illegitimate latitude to rebuttals, of which applicants are only too glad to take advantage. The commission must be obliged to restrict rebuttals severely and vigorously to specific replies to specific points made by intervenors.

One suggestions that has surfaced is to limit rebuttals during proceedings to points which the applicant has raised in prior written rebuttal, a copy of which must be served to the intervenor. The intervenor would then be allowed to reply to these points of rebuttal as part of his intervention appearance. The applicant would still retain last word. (At a recent hearing an intervenor, in his appearance, was denied the right to comment on a written rebuttal.)

Failure to cross-examine rebuttals

Without the right to reply or otherwise to contest contentious statements of a rebuttal, the intervenor must rely on the commission for vigorous cross-examination of both alleged facts and of arguments. Even where rebuttal statements are palpable nonsense, there is no guarantee that all or any commissioners will recognize them as such. It is important, too, for purpose of the transcript record and for the credibility of the hearing, that rebuttals be thoroughly tested and that untenable statements or arguments be corrected. The commission, however, often fails to do so, sometimes because it isn’t well enough prepared and sometimes, it appears, because it just can’t be bothered or doesn’t have the heart for it. The commission must somehow be obliged to fulfil its responsibility in this matter.

In addition, however, the commission cannot be expected to be on top of all the details of any application situation. Cross-examination by intervenors of rebuttals seems to be the only solution.

Failure to follow through after rebuttals

Following a private complaint by an intervenor that important statements of fact in a rebuttal went uncontested although they were highly arguable, a commissioner stated that all these matters were thoroughly checked out by the commission later. In the instance complained of, the intervenor established that this was not done. Further, if a preliminary decision on the application is made immediately following the hearing, then the contentious statements willy-nilly contribute to the general assessment upon which the first-stage decision is made. Against this, later corrections will not be given proper weight.

Prejudicial time limit for intervenors

The CRTC sets an arbitrary time limit of 10 minutes for an intervenor’s presentation at a hearing. This artificial time limit represents a severe limitation on the fair, free, adequate and probing discussion of issues. The CRTC, moreover, cannot be counted on to ensure, in its follow-up questioning if any, that the necessary discussion and probing will take place, not least when the intervenor takes issue with practices of the commission itself; the intervenor often ends up just out of luck. Further, an intervenor who may be a major party to a hearing, who has submitted a detailed analysis of the application, and who has several large issues to discuss, is forced into the same artificial time restriction as an appearing intervenor with a narrower interest. A more flexible arrangement would not remove the commission’s control of the hearing. Abuse of time by an intervenor can always be checked by the commission.

Majority and dissenting opinion: identification of commissioners

All commissioners who have made a decision should be identified in that decision. Where there is a split, majority and dissenting commissioners should be identified. Commissioners must be responsible for the positions they take and should not hide behind anonymity.

Location of policy and other hearings

Policy hearings as a rule are held in Ottawa. Applications of national networks as a rule are heard in Ottawa. All participants in these hearings should accordingly be assessed, or a special fund should be established, so that the travel costs of intervenors who wish to appear will be equal no matter what part of the country they come from.

Availability of documents

All CRTC documents (transcripts, applications, etc.) once deposited in the commission’s library following their immediate use, should be as available in different parts of the country as they are in Ottawa to residents of southern Ontario and south-western Québec. Currently, the regional offices carry documents and transcripts concerning only licences in their respective regions, but excluding documents and transcripts involving licences elsewhere, although the regulatory and licensing system is a national one. The importance of any proceeding, and the interest that may be attached to it, do not magically stop at an invisible regional line. An internal CRTC version of the university interlibrary loan system might be established so that on request, named documents can be shipped under security to the CRTC’s regional offices where they may be examined. This makes them available in different parts of the country without taking them out of the CRTC’s hands.