Fasken Communications Law Triannual Update

Top News

• Bill C-18: The Online News Act, received Royal Assent on June 22, 2023 and the Canadian Radio-television and Telecommunications Commission ("CRTC") and Governor in Council ("GiC") commenced regulatory implementation pursuant to their respective legislative authority in the months that followed:
  
  
  • The CRTC released its plan for establishing a bargaining framework titled "Building a bargaining framework for the Online News Act", which will include a public consultation to establish a bargaining framework and arbitration process between digital news intermediaries and eligible news businesses.
  • The GiC published "Regulations Respecting the Application of the Online News Act, the Duty to Notify and the Request for Exemptions" in the Canada Gazette, which is a set of regulations that are intended to establish, among other things, criteria for digital news intermediaries to obtain an exemption order under the Act.
• Bill C-11: Implementation of the Online Streaming Act continued as the CRTC launched Broadcasting Notice of Consultation 2023-280 – Call for comments – Proposed new Broadcasting Fees Regulations and the GiC published its proposed Order Issuing Directions to the CRTC (Sustainable and Equitable Broadcasting Regulatory Framework) in the Canada Gazette in June. Stakeholders provided comments on the GiC's proposed Order over a 45-day period until late July, but these comments have not have not yet been posted online. The CRTC's public hearing in Broadcasting Notices of Consultation CRTC 2023 – The Path Forward is scheduled to begin on November 20, 2023.
• Innovation, Science and Economic Development Canada ("ISED") released its final version of the Spectrum Outlook 2023 to 2027, which outlines ISED's planning activities related to its management of Canada's radio spectrum to support wireless telecommunications, with a focus on commercial mobile services, satellite services, backhaul applications and licence-exempt applications. ISED's new Spectrum Outlook contains "policy themes" for future consultations and releases, namely: (i) spectrum as an economic drive and enabler of industry 4.0; (ii) rural connectivity in the wake of COVID-19; (iii) Indigenous connectivity; (iv) spectrum, wireless technology and climate change; and (v) competition and wireless affordability.

CRTC

Regulatory Policies and Bulletins

• Broadcasting Information Bulletin CRTC 2023-278 | Change to the processing time for applications and complaints relating to radio undertakings – The CRTC has announced that it will defer the examination of any new applications or complaints relating to radio for approximately two years as it implements the Online Streaming Act.
• Canadian Digital Regulators Forum established to better serve Canadians in the digital era – The CRTC has joined together with the Competition Bureau and the Office of the Privacy Commissioner of Canada to establish the Canadian Digital Regulators Forum. The Forum's Terms of Reference can be found here.

Notices of Consultation

• Telecom Notice of Consultation CRTC 2023-56-2 | Notice of hearing – Review of the wholesale high-speed access service framework – New intervention phase – The CRTC has added several procedural steps to its wholesale high-speed access (HSA) framework review that was first launched in March, 2023. In order to further develop the public record, the CRTC indicated that it would send additional requests for information to parties and accept additional to interventions by October 16, 2023.
• Telecom Notice of Consultation CRTC 2023-156 | Call for comments – Enabling direct 9-1-1 and 9-8-8 calls from multi-line telephone systems – The CRTC requested comments on enabling direct 911 and 988 calls from multi-line telephone systems (MLTS). The CRTC intends to use the consultation to determine what steps it can take to address issues with emergency calling and MLTS systems.
• Broadcasting Notice of Consultation CRTC 2023-214 | Call for comments on amendments to the Television Broadcasting Regulations, 1987 and to the Discretionary Services Regulations – In a policy decision issued earlier this year, the CRTC amended the treatment of stock footage costs by moving them from the "Services" category to the "Other costs" category when calculating the cost breakdown of a production. That change requires further amendments to the Television Broadcasting Regulations, 1987 and the Discretionary Services Regulations.

Decisions and Orders

• Broadcasting Decision CRTC 2023-183 | Regulatory relief regarding the payment of Canadian content development contribution shortfalls for the 2020-2021 broadcast year due to the impact of the COVID-19 pandemic – The CRTC denied an application for regulatory relief regarding the payment of Canadian content development shortfalls for the 2020-2021 broadcast year due to the impact of the COVID-19 pandemic.
• Broadcasting Decision CRTC 2023-308 | Proposed increase to the maximum retail price of the basic service – The CRTC denied an application by Bell and other BDUs requesting to increase the maximum retail price of the entry-level "basic service" offered to consumers from $25 to $28 per subscriber, and to index the amount to inflation.
• Telecom Order CRTC 2023-133 | Wholesale mobile virtual network operator (MVNO) access tariffs – In this Order the CRTC finalized the MVNO access tariffs of the national incumbent wireless service providers. The CRTC gave companies until August 7 to negotiate the MVNO access agreements. If rate negotiations fail, final offer arbitration by the Commission is available as a recourse. The Commission has rendered one arbitration decision on MVNO rates, which is under appeal.
• Telecom Decision CRTC 2023-196 | Review of the approach to rate setting for wholesale telecommunications services – The CRTC decided that it will continue to base its rate-setting for wholesale telecommunication services on a Phase II costing approach. However, the CRTC decided to build on its Phase II methodology by, among other things, exploring a common costing model, as well as to require service providers to file additional market-level information and regularly update economic studies.

ISED

• RSS-247 Digital Transmission Systems (DTSs), Frequency Hopping Systems (FHSs) and Licence-Exempt Local Area Network (LE-LAN) Devices – ISED issued a new version of its certification requirements for radio apparatus operating in the bands 902-928 MHz, 2400-2483.5 MHz and 5725-5850 MHz, as well as licence-exempt local area network devices operating in various 5 GHz bands. Main updates relate to measurement methods, power limits and identifying unwanted emissions in certain bands.
• Applicants – Auction of Spectrum Licences in the 3800 MHz Band – ISED released the list of applicants in the auction of spectrum licences in the 3800 MHz band. The auction is scheduled to begin on October 24 2023. ISED first commenced consultations on the 3800 MHz band in late 2021 and its Policy and Licensing Framework for the band was released in June 2022 and subsequently updated in May 2023.
• SRSP-102 — Band-Specific Technical Requirements for Earth Stations in the Fixed-Satellite Service –This Standard Radio System Plan sets out minimum technical requirements for fixed-satellite service earth stations operating in in the 3700-4200 MHz band. Minimum technical requirements are set out in Annex A of the document.

Court Proceedings

• Société Radio-Canada v. Canada (Attorney General) - The Federal Court of Appeal ruled that the CRTC erred in its decision to penalize Societe Radio-Canada (SRC) for broadcasting an offensive word on air. The Court held that the CRTC overstepped its jurisdiction by sanctioning SRC on the basis that in its opinion the content broadcast on the air was inconsistent with Canadian broadcasting policy. The matter has been sent back to the CRTC to re-determine the merits of the complaint in light of the Court's decision.
• Supreme Court of Canada Docket No. 40776 – Telus Communications Inc. v. Federation of Canadian Municipalities, et al. – Telus has filed an application for leave to appeal a Federal Court of Appeal decision that held the CRTC was correct to find, in its 2021 Wireless Policy Review, that it did not have jurisdiction over disputes regarding access to public highways and other public places for the construction of wireless infrastructure.

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