Tim Denton


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Tim Denton is the Commissioner of the CRTC (Canadian FCC). He spoke on Session 5: Muni Fiber Super Session at the Freedom to Connect 2009 conference.

If you'd like more info about the conference, see

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Tim Denton

  1. 1. Worthwhile Canadian Initiatives by Timothy Denton CRTC Commissioner March 30, 2009 This presentation does not reflect the official position of the CRTC
  2. 2. A Taxonomy of Laws No Licence Required Government Licence Required Telecommun- ications Act Radiocom- munication Act Infrastructure Printing Broadcasting Act Applications, Content, Speech
  3. 3. Canadian framework <ul><li>2 main statutes: Telecommunications Act & Broadcasting Act </li></ul><ul><li>There are three baskets: fall out of one, you fall into another, until you reach the normal market economy. </li></ul><ul><li>Broadcasting Act: music and full-motion video, and its distribution, is generally considered “broadcasting” (e.g. radio, television, cable communications, video programming services) </li></ul><ul><ul><li>Recent technological advances have vastly expanded the potential range of “broadcasting” regulation without any change in the legislation </li></ul></ul><ul><ul><li>Broadcasting is subject to extensive and intrusive content regulation </li></ul></ul><ul><li>Telecommunications Act : n on-broadcasting telecommunications services (e.g. retail and wholesale Internet access) </li></ul><ul><ul><li>Some price regulation occurs in markets where we have not yet forborne ,(at s.34) including, regulation of some of the terms of access to underlying networks </li></ul></ul><ul><ul><li>No regulation of content. Unjust discrimination and undue preference are the key concepts. (s.27(2)) </li></ul></ul><ul><li>Competition Act : sets the general rules for the rest of the economy. </li></ul>
  4. 4. Canada/U.S. comparison <ul><li>The Internet: </li></ul><ul><li>In 1999 the CRTC found that the provision of audio and/or video services over the Internet was subject to the Broadcasting Act . The CRTC then issued an order exempting these services from the requirements of the Act ( The new media exemption orders ). </li></ul><ul><ul><li>The underlying technology is relevant in determining whether services are subject to one act or another. 1) is it broadcasting? 2) If not then, is it telecommunications? </li></ul></ul><ul><li>Canadian approach: </li></ul><ul><ul><ul><li>the underlying transmission medium does not determine the regulatory category </li></ul></ul></ul><ul><ul><ul><li>There is no “information services” category </li></ul></ul></ul><ul><ul><ul><li>CRTC decisions can be appealed to the executive or judicial branches of the government . </li></ul></ul></ul><ul><ul><ul><li>The Cabinet may revise telecom decisions; it may refer broadcasting decisions back to the Commission to review them. </li></ul></ul></ul><ul><ul><li>More judicial deference to the regulator in Canada </li></ul></ul>
  5. 5. Access to infrastructure – U.S. <ul><li>Telecommunications Act of 1996 </li></ul><ul><ul><li>Government established obligation for incumbents to provide access to unbundled network elements (UNEs) at cost-based rates </li></ul></ul><ul><ul><li>Recognized that replicating existing incumbent networks would be so inefficient that it would be unlikely to ever occur </li></ul></ul><ul><ul><ul><li>strong emphasis on entry through use of UNEs and resale </li></ul></ul></ul><ul><ul><li>FCC adopted supportive regulations </li></ul></ul><ul><li>2004 appeal </li></ul><ul><ul><li>Incumbents persuaded federal appellate court that lack of access to certain network elements did not impair competitors </li></ul></ul><ul><ul><ul><li>If competitors could deploy facilities in some locations, it was reasonable to infer they could profitably deploy their own facilities everywhere </li></ul></ul></ul><ul><ul><ul><li>If some competitors could serve some customers without access to certain UNEs, then all could compete without access to these UNEs </li></ul></ul></ul><ul><li>Solicitor General did not challenge the appellate court’s decision in the Supreme Court. The premise of the US Telecom Act of 1996-leased facilities- was undercut. </li></ul>Abolished by telcos
  6. 6. Access to infrastructure – Canada <ul><li>CRTC established a framework for incumbent wholesale services over time and on an incremental basis </li></ul><ul><ul><li>1992: CRTC mandated interconnection for voice toll competition </li></ul></ul><ul><ul><li>1997: CRTC mandated interconnection for local competition and defined “essential services” </li></ul></ul><ul><ul><ul><li>Emphasis was on facilities-based entry </li></ul></ul></ul><ul><ul><li>2005: CRTC mandated access to digital access, intra-exchange and metropolitan inter-exchange facilities </li></ul></ul><ul><ul><ul><li>Increased use of leased facilities </li></ul></ul></ul><ul><ul><li>2008: the wholesale services framework was reviewed and revised, including the definition of an essential service ( Telecom Decision CRTC 2008-17) </li></ul></ul><ul><ul><ul><li>Mandated access to many non-essential services to be phased-out over 3 to 5 years. </li></ul></ul></ul><ul><ul><ul><li>Large carriers insisted that a leased-facilities strategy would inhibit the development of next-generation networks. </li></ul></ul></ul><ul><ul><ul><li>By and large the Commission did not agree with this contention. </li></ul></ul></ul>
  7. 7. Access to infrastructure – Canada <ul><li>Government established policy framework for 2008 auction of 2 GHz spectrum licences </li></ul><ul><ul><li>Provisions to facilitate entry of new wireless service providers: </li></ul></ul><ul><ul><ul><li>frequency blocks set aside </li></ul></ul></ul><ul><ul><ul><li>mandated roaming </li></ul></ul></ul><ul><ul><ul><li>antenna tower and site sharing </li></ul></ul></ul><ul><li>Observations : </li></ul><ul><ul><li>The large incumbents are appealing the CRTC’s essential facilities decision to Cabinet. The largest leased access provider, MTS- Allstream , is also contesting it for not going far enough in allowing access to wholesale ethernet . </li></ul></ul><ul><ul><li>A leased access strategy is still being contested. </li></ul></ul>
  8. 8. broadcasting in new media <ul><li>In October 2008, the CRTC launched a proceeding on Canadian “broadcasting in new media”. </li></ul><ul><li>Proceeding is being conducted under the Broadcasting Act </li></ul><ul><li>It asks a fundamental question: </li></ul><ul><ul><li>Given the evolution and growing importance of broadcasting in new media, are the CRTC’s exemption orders for new media broadcasting and mobile television services still appropriate? </li></ul></ul><ul><ul><ul><li>Services that distribute broadcasting content over the Internet were exempted in 1999 ( Public Notice CRTC 1999-197 ) </li></ul></ul></ul><ul><ul><ul><li>Services that distribute television services over mobile devices were exempted in 2007 ( Broadcasting Public Notice CRTC 2007-13 ) </li></ul></ul></ul><ul><li>If you exempt, it means you believe you have jurisdiction but choose not to exercise it. </li></ul>
  9. 9. broadcasting in new media <ul><li>The CRTC held a public hearing in February / March 2009, during which it focused on six main areas : </li></ul><ul><ul><li>Measurement </li></ul></ul><ul><ul><ul><li>Can the quantity and consumption of broadcasting content in new media be effectively measured? </li></ul></ul></ul><ul><ul><ul><li>Is it possible to identify Canadian content within these metrics? </li></ul></ul></ul><ul><ul><li>Impact </li></ul></ul><ul><ul><ul><li>How are traditional broadcasters adapting to the challenges and opportunities provided by new media? </li></ul></ul></ul><ul><ul><ul><li>How are their business models evolving? </li></ul></ul></ul><ul><ul><li>Contribution </li></ul></ul><ul><ul><ul><li>Are stakeholders in the new media environment contributing to the creation and presentation of Canadian programming? </li></ul></ul></ul><ul><ul><ul><ul><li>The Broadcasting Act states that each element of the Canadian broadcasting system shall contribute in an appropriate manner to the creation and presentation of Canadian programming. </li></ul></ul></ul></ul>
  10. 10. broadcasting in new media <ul><ul><li>Support </li></ul></ul><ul><ul><ul><li>Does any type of content require support for its broadcast in the new media environment? </li></ul></ul></ul><ul><ul><ul><ul><li>Typically, initiatives that support production focus on the creation and presentation of professionally produced programming. </li></ul></ul></ul></ul><ul><ul><li>Visibility and promotion </li></ul></ul><ul><ul><ul><li>Are measures needed to support the promotion and visibility of Canadian broadcasting content in new media? </li></ul></ul></ul><ul><ul><li>Exemption orders </li></ul></ul><ul><ul><ul><li>Are the exemption orders the Commission issued in 1999 and 2007 still appropriate? </li></ul></ul></ul><ul><li>The inquiry’s terms of reference did not focus on the boundaries between regulated and unregulated speech . They were framed in relation to the issues affecting broadcasters and Broadcasting Act objectives. </li></ul>
  11. 11. Free speech was not discussed <ul><li>Several submissions expressed concern to allow “private”, or “non-professional” web communications to remain outside the Broadcasting Act . </li></ul><ul><li>Not one expressly raised the issue of government licensing of speech: </li></ul><ul><ul><li>Broadcasting requires licensing </li></ul></ul><ul><ul><li>Political balance </li></ul></ul><ul><ul><li>Religious moderation </li></ul></ul><ul><ul><li>Other conditions which apply to “broadcasting” which do not apply to printing. </li></ul></ul><ul><li>A few arts groups said “Apply the Broadcasting Act, we will figure out the details later”. </li></ul><ul><li>Business said, in general, “keep your hands off”. </li></ul>
  12. 12. Expand Broadcasting – Shrink Free Expression Printing Broadcasting Act -> Expanded role of government in speech control Applications, Content, Speech Printing Unlicensed by the state Broadcasting Licensed by the state Applications, Content, Speech
  13. 13. To the extent there was a legal debate, it focussed on ISPs <ul><li>ISP Legal Opinion </li></ul><ul><li>ISPs are passive, acting as a conduit to enable their customers to access the Internet </li></ul><ul><li>ISPs do not engage in broadcasting activities </li></ul><ul><li>ISPs do not generate content, or control the content to which they provide access on the Internet </li></ul><ul><li>ISPs are merely carriers of content generated by others, with no editorial control </li></ul><ul><li>Therefore, as ISPs cannot be classified as broadcasting undertakings (distributor, programmer or otherwise), the CRTC cannot impose a levy on them under the Broadcasting Act </li></ul><ul><li>Cultural Group Legal Opinion </li></ul><ul><li>ISPs are subject to the Broadcasting Act as distributors of broadcasting content </li></ul><ul><li>ISPs engage in the reception and retransmission of broadcasting content for reception by the public </li></ul><ul><li>ISPs can be regulated both under the Telecommunications Act for its telecommunications services and the Broadcasting Act for its broadcasting activities </li></ul><ul><li>Therefore, the CRTC can impose a levy on the broadcasting activities of ISPs under the Broadcasting Act , which states that each element of the Canadian broadcasting system shall contribute in an appropriate manner to the creation and presentation of Canadian content </li></ul>
  14. 14. Internet traffic management practices <ul><li>In November 2008, the CRTC launched a proceeding on the Internet traffic management practices of ISPs </li></ul><ul><li>Proceeding arose from the outcome of an earlier process regarding a specific case of throttling by one ISP relating to wholesale Internet access </li></ul><ul><li>The topics raised in this new proceeding are: </li></ul><ul><ul><li>“ Traffic management” vs. “Traffic discrimination” </li></ul></ul><ul><ul><ul><li>Concerns revolve around the idea that ISPs are deciding who should access what </li></ul></ul></ul><ul><ul><ul><li>Issue needs to be examined in light of the Telecommunications Act </li></ul></ul></ul><ul><ul><li>Impact of traffic management on Internet users </li></ul></ul><ul><ul><ul><li>Differing views on whether effects of traffic management practices are positive or negative </li></ul></ul></ul><ul><ul><ul><li>Issue requires thorough examination of technical and economic approaches adopted by ISPs </li></ul></ul></ul>
  15. 15. Internet traffic management practices <ul><ul><li>Best practices in other jurisdictions </li></ul></ul><ul><ul><ul><li>Traffic management is a global issue; important to consider international developments </li></ul></ul></ul><ul><ul><li>Calls to increase the transparency of ISP service offerings </li></ul></ul><ul><ul><ul><li>ISPs do not always disclose traffic management practices to their customers </li></ul></ul></ul><ul><li>Outcomes </li></ul><ul><ul><li>The proceeding’s outcomes are expected to be applied in a technologically neutral fashion </li></ul></ul><ul><ul><li>Not the CRTC’s intention to tell ISPs how they should build their networks </li></ul></ul>