What’s The Frequency, Liza?

My weekly Law Bytes column (Toronto Star version, freely available hyperlinked version) focuses on the explosive battle over satellite radio in Canada.  I begin by recalling Canadian Heritage Minister Liza Frulla's position on the entry of RAI, the Italian language television network, into Canada last summer. Despite enormous pressure, the new Minister stood by the CRTC.  In response to criticism from opposition parties, she told the House of Commons that "the CRTC is an independent tribunal and an arm's length body. Of course we cannot have any political use of that body."

Pressure continued to build throughout the fall as opposition parties maintained their focus on CRTC decisions.  When the Minister was asked to intervene in cases involving two U.S. television networks, Fox News and SpikeTV, she again emphasized the independence of the CRTC, noting that "it will make its decision, and we are going to respect that decision."

Fast forward to last week: same CRTC, same Minister Frulla, but a much different message. Cabinet will reportedly discuss the matter on Thursday, yet Minister Frulla has already signaled that the government plans to intervene, telling one reporter that "our mind is pretty much made up."

Should Cabinet follow Minister Frulla's recommendation, the government will have substituted a lengthy, impartial process with one determined by lobbying power and political expediency. Even if it leaves the CRTC's decision untouched, the damage will still have been done, since Minister Frulla's abandonment of her principled support of the CRTC has vanished and the future relationship with the so-called "arm' s length body" has been called into question.

Moreover, the complete politicization of the satellite radio issue does not bode well for other key issues involving Canadian Heritage.  Bill C-60, the copyright reform bill currently before the House of Commons, provides a laundry list of new rights and powers to special interests, but does little for individual Canadians.  As pressure mounts from U.S. backed lobbies to eliminate the bill's few user-focused provisions, there are fears that that process may also shift away from a "Made in Canada" solution to a lobbyist-dominated outcome.

In the aftermath of the CRTC' s decision last June, I supported its willingness to identify new methods to promote Canadian content and concluded that Canadian artists and consumers would be the ultimate winners.  It seems that I spoke too soon.

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