Broadcasting Policy Hits the Internet©
Leonard Waverman[1]
University of Toronto, London Business School
Bits and bytes bypass any national territorial control. Thus, audio-visual broadcast material -- television and radio -- is intrinsically international. Yet, broadcasting is controlled nationally and audio-visual policies are in many cases nationalistic. Governments license media outlets (radio and TV stations), restrict what kinds of content and advertisements can be broadcast over the airwaves, and often limit who can own media, and the underlying delivery infrastructure. These policies are in many cases designed to meet broad widely accepted social goals – for example, diversity, unbiased information, and education. [2]
The ways in which governments control broadcasting is based on the technology of the 1970’s and 1980’s. Television and radio programs were delivered by infrastructure technologies specific to television and radio– therefore, governments were able to define and control what was broadcast over each infrastructure. Since spectrum was also limited, permission to operate was a valuable resource and able to be controlled by the state.
The Internet changes all. First, the Internet knows no national boundaries. Content can be downloaded from any of the millions of host sites on the Web. Second, on the Internet, all messages are bits and bytes of data and are therefore equivalent. A TV signal requires more bandwidth than an e-mail message, but there is no easy way of distinguishing (without reading the content)[3] what individuals are downloading to their computer screens, web TVs or cellular phones. As a result of these two features, the uniqueness and the scarcity of traditional broadcast ‘programming’ disappear. Intrinsically convergent, the Internet is accessible by copper wire telephony systems, by co-axial TV systems, by optical fibre systems, by radio and by satellite. Broadcasting over the Internet (webcasting) bypasses traditional systems. Thus, for governments to control broadcasting is more difficult in this new world. ,
"Relative anonymity, decentralised distribution, multiple points of access, no necessary tie to geography, no simple system to identify content, tools of encryption - all these features and consequences of the Internet protocol make it different to control speech in cyberspace"
Lawrence Lessig, Code and Other Laws of Cyberspace, Basic Books, 2000 p.166.
Two crucial points follow. First, either broadcasting becomes more open and accessible, to individuals, or else governments continue to intervene but now with even more restrictive policies., The openness of the Internet paradoxically requires more illiberal policies to restrict content. Second, the key public policy question is how to best meet the valid social objectives of current broadcasting policy in the Internet world.
In this paper, I examine the traditional means of controlling broadcasting, policies that I label as primarily ‘negative’ –restrictions and limits - and show that the Internet expands borders and markets and is intrinsically restriction-less and limit-less. The primary purpose of the paper is to urge governments to begin re-considering the ways in which they promote the broad social goals that underlie audio-visual policy. Controlling the Internet is not an option. And, in doing so, to minimise controls over the Internet.
The Internet rides over all infrastructure and is ubiquitous. Therefore, the Internet drastically limits the ability of governments to easily engage in negative policies.
Therefore, sSociety’s goals for broadcasting which can include – quality, diversity, unbiased information, education, statutory political broadcasting, local content, public TV, may need new instruments which are not based on restrictions. The Internet itself is a medium for diversity and helps meet other broad public goals as it lowers the costs of distribution. However, since the Internet allows easy access to global content, societies must struggle with how and if to limit access to material that promotes hate, violence, child abuse and other illegal activities. Another key public policy is the promotion of invention and innovation, and societies need to understand how the Internet may affect the ability of content providers to capture the intellectual property rights of their innovation.[4]
The Internet has substantial impacts for telephony. Voice-over-IP lowers costs and destroys the ability of telecom operators to price discriminate between calls based on their distance or whether they are national or international.
The Internet in the broadcasting world does far more than lower costs and eliminate price discrimination as in telecom; the Internet has the ability to totally revolutionise broadcasting and, in the process, to destroy much of the traditional regulatory model. In the Internet broadcasting world, negative regulation is exceedingly difficult if not impossibleand therefore requires more restrictive policies. For example, governments can intervene by arbitrary fiat, by forcing ISPs to behave as publishers (and therefore responsible for content). ) Page: 3 A A recent UK legal precedent has established that an ISP is a publisher not a common carrier. Therefore, an ISP can be held liable if (as in the recent case) someone is defamed on the Internet. The implication is that the ISP must be able to ascertain the content, and therefore read it! This is surely not a direction society wishes to go.
The structure of the paper is as follows: the next section shows how technology helps determine effective broadcasting policies and how the technology of the Internet undermines the traditional basis of audio-visual policies. Section three describes in general terms the basic structural pillars of broadcasting policy in most countries; these policies depend on restrictions – on entry, on content and on a set of implicit and explicit subsidies and taxes. The fourth section discusses how the Internet overrides restrictions and thus profoundly alters the basic pillars of broadcast policies. The last section argues that these sweeping changes will occur in the near term -- 2 - 3 years -- and that governments should quickly move to positive inclusionary broadcasting policies supplementing the increased diversity that the Internet enables.
Traditional technology and traditional regulation
In the 1970’s, telephones could only provide analogue voice point-to-point communications and cable television distribution systems could only provide one-way broadcast (rather than interactive) television programming. These delivery systems technically could not deliver competing services, and services could not be provided by competing delivery systems[5]. Because of the distinct nature of the delivery system and the services offered over those systems, most countries were able to impose controls on both infrastructure and on services. In addition, countries often set up separate and distinct regulation for telephony and for broadcasting.
The last decade, however, has seen the emergence of a vast number of technological innovations, which have ended this one-to-one correspondence between a delivery system and a service. Telephony can now be provided by wire (copper, coaxial cable, and fibre optic systems), wireless, and by satellite technologies. Video delivery can be provided by cable TV, copper wire pairs (ADSL) and soon by wireless – satellite and enhanced or third generation mobile.[6] The number of services that can be offered over any of these delivery systems is expanding rapidly. Most economies have recognised that this technological change in telecommunications delivery requires a complete rethinking of the traditional regulatory model for the telecommunications industry.
Television signals are now provided by traditional over-the-air broadcast, by co-axial cable and via satellite (DTH). New technologies also allow Near Video on Demand (NVOD) over traditional phone lines. Digital technologies are now vastly expanding the number of channels carried on any medium and its quality. And, Digital Television (DTV) expands the range of services offered over a broadcasting/multicasting format to include the distribution of data, software and Internet access.
Because of these multi-product technologies, it is also now increasingly difficult to differentiate between ‘telephony’ and ‘broadcasting.” This confluence of technologies and services means that the traditional division between ‘broadcasting’ and ‘telephony’ is eroding. Yet, while technological advance in telecom infrastructure has led to regulatory reform and liberalisation, technological advance in broadcasting has paradoxically led to perhaps even greater controls.[7]
The paradox is understandable because of the different public roles of telecom and broadcasting. Telecom has been the transmission of voice and data messages, and telecom operators are expressly forbidden from reading this content. Broadcasting is content – information (news and education), and entertainment (sports, sitcoms/drama and feature films). Content, unlike telecom messages, is replete with social values and both shapes and is shaped by culture.
The European Commission said this recently about the audio-visual industry:
The audio-visual industry is not an industry like any other and does not simply produce goods to be sold on the market like other goods. It is in fact a cultural industry par excellence, whose ‘product’ is unique and specific in nature. It has a major influence on what citizens believe and feel.”[8]
The U.S. Federal Communications Commission (FCC) stated several months ago:
Television is the primary source of news and information to Americans, and provides hours of entertainment every week. In particular, children spend far more time watching television than they spend with any other type of media. Those who broadcast television programming thus have a significant impact on society. Given the impact of their programming and their use of the public airwaves, broadcasters have a special role in serving the public. For over 70 years, broadcasters have been required by statute to serve the public interest, convenience, and necessity.”[9] Congress has charged the Federal Communications Commission with the responsibility of implementing and enforcing this public interest requirement. Indeed, this is the “touchstone” of the Commission’s statutory duty in licensing the public airwaves. [10]
Therefore broadcasting has a set of policy interventions and instruments designed to meet a broad array of social goals. These interventions are on both the delivery systems, as well as on the content, and normally involve restrictions on content and ownership. We can label many of these policies as ‘negative’ policies because they discourage an activity rather than promote, (a positive policy) an activity (a positive policy).[11]
Current broadcasting policies in most countries:
Broadcasting policy is then complex; it involves controls over infrastructure as well as on the content that flows over that infrastructure. This Policy has been erected over decades and is a vast construct of explicit and implicit policies fulfilling a myriad of objectives – all under the name of Culture or Protection of the Public.
Definition of Broadcasting
A major problem for broadcasting policy is that the new technologies and new services make it increasingly difficult to determine, in fact, what is broadcasting or programming. Traditionally, broadcasting has been defined circularly as the transmission of program content captured by viewers on “broadcast receiving devices.”[16] The Internet destroys this definition.
The traditional broadcasting system links customers who have simple receive-only terminals called TV sets with broadcasters who purchase/produce content and deliver that content by “broadcasting” it over some proprietary infrastructure system. The term “broadcasting” refers to the earliest form of television – over the air – where anyone with a receiver would pick up the same channels. Cable and satellite delivery use the same principle –push technologies where all customers have access to the same broadcast material. One could attempt to redefine broadcast programs for the new technology, for example, to programming, which is scheduled and pushed (broadcast across a network).[17]
However, consider then the difference between Video on Demand (VOD) that sits as a library accessible at the individual consumer’s will, and NVOD that airs the same film at say 15-minute intervals. Calling the latter programming because it is "pushed" (transmitted/broadcast) and, therefore, regulated but the former unregulated Internet content which is “pulled” individually will simply bias the market to VOD. Moreover, a "broadcast receiving apparatus" is no longer a T.V. or radio; it is now a computer screen, and soon will be numerous personal hand held devices accessible at home, at work or on the move.[18] What do governments try to control and tax?
The Internet is a fundamentally different model because:
Thus, the Internet, combined with digitised coding of information makes it currently extraordinarily difficult for governments to control what news and entertainment that people access.[26]
If we re-examine the current set of negative broadcasting policies discussed above, we can determine how the Internet impacts the effectiveness of current policies.
In the language of telecom, to this point in time, bypass in broadcasting has been minimized by forcing all infrastructure providers -- over-the-air, cable or satellite -- to show/play domestic/local programming.
But the Internet is global connectivity; therefore enforcing domestic content will be increasingly difficult. In an Internet world, the backbone infrastructure has no idea, unless content is monitored and read, as to what is being transported. But the Internet by design currently is a blind architecture. The infrastructure provider cannot easily ascertain the content. At the application layer, content can be ascertained but only at the site being accessed.
Companies such as doubleclick.com do provide software that allows the site being visited to track the customer while she is at that site. These applications cause concern about confidentiality of information and privacy. However, for a third party to know what was being viewed at the web site would require a software program embedded on the user's device. Therefore, for governments to control content requires extraordinary restrictions.
These fundamental and marvellous characteristics of today's Internet are likely accidental features of the initial computer-to-computer research sharing purpose of the Internet. However, as Lessig and others crucially point out, applying new regulations to the application layers that ride over the Internet transport protocols can alter this architecture. Lessig discusses governments requiring ISP's to employ software that conditions an individual's access on the user's providing some identification.[27] There is a potential expansion of digital certificates to all users of the net identifying and limiting individual access. This would allow governments to ensure that at least domestic broadcasting was only watched by those authorized to do so. This has the effect of licensing broadcasters. Of course, bypass would be feasible ISP's -- one could dial up a foreign .ISP -- but costly. That is to say, Therefore, we must be vigilant in safeguarding the crucial features of the Internet which that allow anonymity and privacy.
In the current Internet world there is nolittle ability for governments to control content. Routers do show the path that the download has followed but only after the material has been delivered. Moreover, a webcast picture from source A to receiver B within country X may go over different routes and not necessarily even be within the nation state where A and B reside. Thus, when all infrastructure is Internet protocol, the uniqueness that defined a “broadcast” will have disappeared. Current domestic content rules work because the regulator can for example, count the minutes in prime time and can observe all stations. With millions of content providers being accessed over the converged Internet infrastructure, the regulator simply cannot measure minutes of content. The same is true for "must carry" rules. Take, as an example, the requirement in the U.S. that 30 minutes weekly of prime time television be devoted to core children educational programming. What is prime time television in the Internet world, and who is forced to deliver this educational programming? Regulators may attempt to redefine prime time, but for what purpose? Rather than imposing restrictions on the Internet so as to carry forward old objectives, we must first re-think what the restriction was aimed at achieving and how that policy is best met in the Internet world.
Nations can impose these public service constraints because the state provides free, valuable resource-spectrum, or a franchise. But, with the Internet, there is no scarce resource, other than the ability to capture viewers' attention. Webcasting does not require spectrum. Therefore, the Internet lowers the value of traditional broadcasting spectrum.
In the converged world, bypass is easy, as one cannot enforce minimum standards over content on carriage providers because carriage is universal. Nor can one easily tax broadcasting at the broadcast, viewing or carriage levels. Since a “domestic French” broadcast can go via non-French routes from A to B, neither the carriage company nor the French regulator would know what broadcasting was being carried in France. That regulator could not tax or impose requirements on Belgian, Canadian or Algerian broadcasters or on their backbone networks. Nor is it known what infrastructure is carrying broadcast signals. Therefore, in the Internet world, either there is blanket draconian censorship of the terminal devices and/or the services or there is openness. The Internet is not open to ‘partial’ policies. For example, consider mandatory labeling of content- either ‘negative’ (explicit sexual material) or ‘positive’ (news, Spanish language). Mandatory labeling can have adverse effects. What is explicit sexual material - a Rubens nude? What is 'news'? Thus civil libertarians argue that mandatory labeling is exclusionary. Regulators will think of new rules to meet old needs – for example, requiring domestic ISP’s to only carry service providers that meet a minimum domestic content test – individuals can dial around these ISP’s but at a cost. Or will governments attempt to restrict access to foreign sites? But we have domestic content rules to ensure a vibrant domestic creative community. Therefore, why not improve policies that directly promote the supply of such domestic material, rather than continuing to rely on indirect policies restricting what people can see or hear?
Ownership rules are designed to prevent foreigners from owning "essential" facilities or content, and to prevent the accumulation of stations in too few hands. The Internet does not alter ownership. What it does is greatly increase access to foreign stations and foreign content and therefore may make mute requirements that stations be owned by citizens of theat country. In addition, since the Internet promotes diversity and extends market reach, it can alter any power that local stations may have, and therefore, a re-examination of foreign ownership rules will be in order.
In many OECD countries, public broadcasting is important, and a crucial public policy. The Internet affects public broadcasters in three ways. On the positive side, the Internet could be an important medium for public broadcasters, especially those content rich such as the BBC. The Internet provides low cost distribution mechanisms so those public broadcasters can reach audiences in new ways. With content being pulled by individuals, many niche markets can be served, promoting public broadcasting. On the negative side, the Internet increases the competition for the viewers, perhaps reducing the audience for public broadcasts that are favoured by restricting competing content. Also, the Internet will likely limit some of the ways by which governments raisemonies funding to pay for public broadcasting. (See below)
The Internet also forces a re-examination of the explicit and implicit subsidies and taxes contained within broadcasting policy. For example, one cannot tax the provider of content, who can be anywhere on the backbone system A-B, because it is carrying domestic television.[28]
A prevalent broadcast tax across the OECD is a T.V. licence fee (the UK, France and others). This tax is imposed on the viewer not on the broadcaster. But the whole regulated nature of broadcasting is a complex structure of implicit taxes and subsidies. In all countries taxes are levied on those entities that gain broadcast licences because of the set of imposed public policy obligations. [29] The beneficiaries are consumers who value this programming as well as those who produce the programming. For example, a domestic content regulation could be replaced either by a subsidy on domestic content production or a tax on foreign content. One could conceivably determine the "subsidy/tax" equivalent of each negative policy. I have not done this. What is critical is the realisation that this structure of implicit taxes/subsidies is not easily sustainable in the Internet age. With the Internet, viewers can bypass the mandated programming, for example, core children’s programs in prime time. Fundamentally, in the Internet webcasting world, there will be fewer rents for traditional broadcasters and less of an ability to meet social obligations that currently require the spending of rents on certain kinds of programs.
What of the T.V. viewer tax? In the ultimate converged world, the TV and the computer are nearly interchangeable. Hence one cannot tax just TV sets since “television programs” can be watched on other types of terminals. Should all computer owners hold TV licences? What about mobile phones? What if these instruments are in an office in a major corporation? TV sets are normally in homes and primarily for entertainment. Thus, it is “easy” to tax TV sets as entertainment tools; taxing all screens is not so easy.[30]
The reason for the difference in the impacts of the Internet on programming, such as the Olympics on one hand and on domestic content on the other hand, is easy to see. The audience for the Olympics is almost everyone, there is no need to substitute the Olympics for other content - the Olympics will be watched. Domestic content and must-carry rules are the reverse - some of this programming would not be watched if substitute programming were available. Thus we need to carefully distinguish the different goals of content rules – as between domestic drama, domestic news, political broadcasts and education. We then have to determine how the Internet affects each content type. While the Internet may fragment audiences, its ubiquity in infrastructure and in receivers will likely expand the times and ways in which viewers download content. It is unlikely that the Olympics, news and political broadcasts will suffer. Education, drama, and programming that benefits from having substitutes restricted willcould also suffer -- hence the potential need for more supply side policies.
The Internet will have profound impacts on broadcasting. It removes the constraints that limit the amount of content accessed by viewers. It reduces costs of the delivery of content, reduces entry barriers and will expand diversity. This would appear to be good news. But since current broadcasting policy is based on the premise of scarcity and the policies ofon constraining viewer choice, the ability of thesecurrent policies to achieve their goals will be affected by the Internet.
Since there is a complex political consensus and a host of policies and instruments embedded in “broadcasting,” change will not be easy. The Internet presents an especially fundamental problem for “negative” policies, which restrict choice. None of this is meant to say that the public goals embedded in broadcasting are wrong. To the contrary, these goals of diversity, education, unbiased information and others are essential. However, Wwith the changing technology, it is increasingly difficult to meet valid public goals by imposing obligations on broadcasters or imposing domestic content requirements on content. . It is not impossible to restrict viewer choice on the Internet, but to do so requires much more invasive policies than those used currently.
Thus, society needs to reconsider carefully the public goals for the audio-visual sector, current policy instruments, how these instruments operate in the market and how their effectiveness is altered by the new evolving technology. Politicians/regulators will likely need to consider more market-basedsupply side policy instruments, relying on increased consumer choice through the market not quantitative restrictions.. The subsidy of certain content is likely to continue. As I have indicated, domestic content rules can be considered equivalent to an indirect high tax on foreign content and thus an indirect subsidy to domestic content providers. Direct subsidies have the benefit of transparency of the amounts being spent, a major improvement over current policies where the total subsidy is unknown. However, other obligations such as under the WTO, EU or NAFTA may limit the extent of subsidies or their targeting at domestic citizens.
Finally, Webcasting should not be regulated as “broadcasting” or “content,” because
Internet broadcasting should not be regulated, indeed it shows how market solutions can provide what consumers demand[31].
APPENDIX
Current Broadcasting Policies
The present main instruments of broadcasting policy – content
restrictions and indirect taxes are not all suited for an Internet
world. I look briefly at Canada, Europe, and the USA, and Japan.
Canada[32]
Current Canadian broadcasting, policy is based on an elaborate
set of entry restrictions, programming requirements and
cross-subsides. For example, Canadian broadcasting rules license
infrastructure (network) services and content, establish content
rules,[33], tax broadcasters for the production of Canadian content,
set maximum permissible amounts of time on advertising, [34]and
subsidise content production.
Rules on Canadian content are set under the “Television
Broadcasting Regulations” SOR/87-49.[35] Basically, 60% percent of
programming between 6 PM and midnight are to be Canadian.[36]
Canadian infrastructure providers (cable, DTH) have detailed
rules of what programs they must carry – local CBC programs first,
then educational programs, then other local programs, regional CBC,
etc. before other programming that they may wish to provide. These
are so-called basic channels, which must be carried before
specialty, pay television or pay-per-view channels are carried.
Canadian programming services are rigorously defined.[37],[38]
All networks and infrastructure providers are taxed to pay for the
production of Canadian material, which is basically 8% percent of
broadcasting revenues. These taxes are placed in central funds
available to be drawn on by Canadian program providers. There are
also barriers to integrated content provision by infrastructure
suppliers. If a Pay TV program that is owned 30% percent or more by
the broadcaster is carried, then at least one other third party
(less than 30% percent control) program must be carried.[39]
Europe
In Europe, the “Television Without Frontiers” Directive[40]
establishes:
EU member countries may draw up lists of sporting events,
which must be televised unencrypted.; and protection of minors
– no programming which "might significantly impair the
physical mental or moral development of minors, in particular
programmes that involve pornography or gratuitous violence.”
[42]
The USA
The United States imposes a significant set of obligations on
broadcasters, including:
The 19986 Telecommunications Act requires the
broadcasting industry to utilize a "V - chip"
which would allow households to automatically block certain
broadcasts, based on labels or tags. Japan
The Diffusion of Terrestrial Broadcasting is as follows:
Commercial broadcasters NHK TV Broadcasting Four to six
broadcast channels are viewable in 90 percent of total
households. One general and one education channel are broadcast
nationwide. AM Broadcasting Available nationwide. In major
areas, two or three channels are broadcast. Radio 1 and Radio 2
are broadcast nationwide. FM Broadcasting Available nationwide.
In major areas two channels are broadcast. In addition,
community broadcasting is conducted. One channel is broadcast
nationwide. Short Wave One channel is broadcast nationwide.
(Overseas broadcasting is Broadcasting conducted.)
Note: In addition to the above, the University of the Air
Foundation broadcasts one TV and one FM channel, targeting a
major part of the Kanto Region as its coverage area.
http://www.mpt.go.jp/whatsnew/yellowbook/reference-0002.html#ref6
As noted earlier, concentration in Japanese
broadcasting/media is high with five national newspapers
controlling the five major Tokyo TV channels who produce the
majority of broadcasting and who control major radio stations.
Foreign ownership is allowed up to 33% percent in cable
distribution systems or up to 100% percent in cable TV systems
that are also telecom carriers. There are over 1000 cable
systems (with more than 50 subscribers) as the data below show.
These "cable" systems are more like community
systems/user groups in North America.
[1] This paper was written for and sponsored by the Global
Internet Project (http:/www.gip.org), in cooperation with the
Internet Society (http:/www.isoc.org). The Global Communications
Consortium at LBS supported the research. Simon Garrett of BT,
Michael Nelson of IBM, and David Olive of Fujitsu Limited
provided helpful comments. The opinions expressed in this paper
are mine alone, and do not necessarily reflect those of the GIP
principals, GIP member companies, or the Internet Society.
[2] Sometimes, policies such as overt censorship are not
necessarily accepted across societies.
[3] Later I do discuss changes in the architecture of the
Internet, such as digital certificates and labelling which make
distinguishing content easier.
[4] There are many other issues which that need analysis –
who is legally liable for the content on the Internet. In
traditional broadcasting it is the country of origin since the
identity of the broadcaster is easy to determine.
[5] Cable TV did always face competition from over-the-air
broadcasting.
[6] The Low Earth Orbit (LEO) systems of Iridium, Globalstar
and Teledesic are designed to provide telephony, but not
necessarily to substitute for wired infrastructure in developed
countries.
[7] For example, in the US, the FCC is considering imposing
its traditional ‘must carry’ rules on DTV. See www.fcc.gov/mmb/prd/hot1.html
see also http://www.fcc.gov/Bureaus/Cable/News_Releases/2000/nrcb0003.html
[8] Report from the 1998 High Level Group on Audio-visual
Policy chaired by Commissioner Marcelino Oreja, ‘ The Digital
Age: European Audiovisual Policy”, http://europa.eu.int/comm/dg10/avpolicy/key_doc/hlg1_en.html
[9] 47 U.S.C. § 309(k). This public interest requirement
goes back to the Radio Act of 1927, 44 Stat.1162, and was
carried over by Congress in the Communications Act of 1934, 48
Stat. 1064.
[10] www.fcc.gov/Dailey_Releases/1999/db991221/fcc99390
[11] Subsidising the production of content or subsidising
public television can be labelled as ‘positive’ policies.
[12] Present in all OECD countries except Australia,
Luxembourg, Mexico, New Zealand and Turkey. See OECD 1999
Communications Outlook, Table 6.17
[13] See EU High-Level Committee, Part II. For example,
television companies must devote 30 percent of their total
investment budget in the production or purchase of European
drama.
[14] In Japan, cross-holding is common. The more important
broadcasters own both radio and television channels and local TV
stations form tie-up networks with the 5 major Tokyo
broadcasters. These 5 produce 80% percent of Japanese
programming. These 5 broadcasters are subsidiaries of the 5
major national newspaper corporations. (see www…..
[15] In Japan, broadcasters, satellite operators, cable tTVv
operators cannot have foreign ownership of more than 20% percent
See ….
[16] Typical examples of definitions of broadcasting as well
as what is a “program” are given in the Canadian
Broadcasting Act, 1991 as follows: "broadcasting"
means any transmission of programs, whether or not encrypted, by
radio waves or other means of telecommunication for reception by
the public by means of broadcasting receiving apparatus, but
does not include any such transmission of programs that is made
solely for performance or display in a public place;
"program" means sounds or visual images, or a
combination of sounds and visual images, that are intended to
inform, enlighten or entertain, but does not include visual
images, whether or not combined with sounds, that consist
predominantly of alphanumeric text”; Chapter B-9.01
[17] In 1995, the CRTC appears to distinguish between
licensed VOD programming and VOD which is not scheduled.
“These
[latter] services will be akin to a bookstore or
library….” (p. 34). Licensed VOD programming is recommended
as offering “the maximum practicable number of Canadian
titles…(and) should be expected to make direct contributions
to the development and production of Canadian programs” (p.
34). But how can one tax titles on a shelf or their delivery if
the delivery is over the Internet?
[18] See http://www.broadband.com/ for its vision of
convergence and connectivity.
[19] Interactive is a rapidly growing phenomenon, see http://www.webtv.com/,
http://www.worldgate.com/, http://www.open.com/.
[20] For example http://www.webradio.com/ ,
www.earthtuner.com , http://www.earthcam.com/ and other Internet
radio sites permit the computer user to listen to stations
around the world. http://www.icravetv.com/ is an operational
Canadian site now shut down providing television over the
Internet, more below.
[21] See "Digital TV". The Future of E-Commerce, by
Stephen Carwell. http://www.ecommercetunes.com/, March 20, 2000.
[22] See http://www.tivo.com/ and http://www.replaytv.com/
[23] See http://www.realnetworks.com/
[24] RealPlayer receives a constant stream of data (both
audio and video) over the Internet from the servers of the site
being accessed. Quality is dependent not only on the bandwidth
to the computer but also congestion on the Internet itself.
Dropouts occur when the information being sent is lost or
delayed.
[25] There are two methods of delivering signals: Multicast
and Unicast, ( many ISP’s and servers still use Unicast, which
is inferior).
[26] For example, Canadian content on radio is defined by
points earned as to whether composer, player or producer are
Canadian – simply impossible on the Internet – how does one
‘know’ or ‘test’ whether the author is Canadian – a
Canadian e-mail address?
[27] He calls this "tractability" regulation, see
Lessig p.51.
[28] One can attempt to make access to ‘foreign’ material
more difficult by imposing requirements on ISP’s for example,
or by imposing the use of digital certificates for all content
and restricting content. This is terrible public policy.
[29] Canada ‘taxes’ all transfers of broadcasting
licences and the proceeds are used for Canadian programminmg.
[30] Belgium does tax computers.
[31] The objectives of limiting hate, violent and other
objectionable material have to be maintained.
[32] This section on Canada is based on Waverman 1998.
[33] 6) Subject to subsection (9), a licensee shall devote
not less than 60 per cent of the broadcast year and of any six
month period specified in a condition of licence to the
broadcasting of Canadian programs. (Television). Radio has rules
that define what in “Canadian” music is (the Toronto
Symphony recording Beethoven in Ottawa but not Buffalo).
[34] 11. (1) Except as otherwise provided in subsections (2)
to (4), or by a condition of its licence, a licensee shall not
broadcast more than 12 minutes of advertising material in any
clock hour in a broadcast day.
[35] See Globerman 1995, Surtees 1995.
[36] However, since news is “Canadian” and is low cost,
the substitution by broadcasters of news for drama and other
so-called “under-represented programming
[36] itself has had to be controlled by the CRTC by providing
drama with a 150 percent time credit.
[37] Canadian programming service" means (a) a
programming service that originates entirely within Canada or is
transmitted by a licensed station; (b) a programming service
consisting of community programming; (c) a specialty service;
(d) a pay television service; (e) a television pay-per-view
service; (f) a DTH pay-per-view service; (g) a video-on-demand
service; or (h) a pay audio service. (service de programmation
Canadien)
[38] The criteria used in defining a Canadian program are set
out in Public Notices CRTC 1984-94, 1987-28 and 1988-105. Most
private, conventional English-language broadcasters earning more
than $10 million dollars per year in advertising revenues may
choose between a condition of license requiring a minimum level
of expenditure on Canadian programs tied to their advertising
revenues, or a condition requiring a minimum level of exhibition
of Canadian entertainment programs in the evening broadcast
period.
[39] These overly regulated restrictions likely diminish
programming.
[40] Directive 89/552/EEC and Directive 97/36/EC
[41] Directive 97/36/EC Article 4
[42] Directive 97/36 /EC Article 22
[43] 47 C.F.R. §§ 73.3526(a)(8) and (9) and 73.3527(a)(7).
See also Deregulation of Radio, BC Docket No. 79-219, Report and
Order, 84 FCC 2d 968, 982 (1981).
[44] See 47 U.S.C. §§ 312(a)(7), 315; 47 C.F.R. § 73.1941
(equal opportunities); 47 C.F.R. § 73.1942 (candidate rates);
47 C.F.R. § 73.1944 (reasonable access).
[45] Children’s Television Act of 1990, Pub. L. No.
101-437, 104 Stat. 996-1000, codified at 47 U.S.C. §§ 303a,
303b, 394.
[46] Policies and Rules Concerning Children’s Television
Programming, Revision, Revision of Programming Policies for
Television Broadcast Stations, MM Docket No. 93-48, Report and
Order, 11 FCC Rcd 10660 (1996).
[47] 18 U.S.C. §1464; 47 C.F.R. § 73.3999.
[48] 47 C.F.R. Part 79.
[49] 47 C.F.R. § 73.2080. The United States Court of Appeals
for the District of Columbia Circuit has declared the some of
the Commission’s EEO policies and rules unconstitutional, and
remanded certain aspects of these policies and rules to the
Commission for further consideration. Lutheran Church-Missouri
Synod v. FCC, 141 F.3d 344, 393 (1998). As indicated below, the
Commission’s EEO policies and rules are the subject of an
ongoing proceeding.
[50] 47 C.F.R. § 73.1212.
[51] 47 C.F.R. § 73.670.
[52] In the Matter of Public Interest Obligations of TV
Broadcast Licensees FCC MM Docket No. 99-360