Steamer1
May 26th, 2001, 08:17 PM
copied from the national post web site.
Satellite wars far from over
Recent court rulings in Ontario and B.C. say there is no legal basis to prevent Canadians from receiving U.S. satellite programming. But will the Supreme Court weigh in on the side of cultural nationalism?
George Bragues
Paul Lachine
These are happy days for grey-market U.S. satellite dealers, their customers, and opponents of Canada's cultural protectionist regime. A recent string of court rulings in B.C. and Ontario found no basis in law for the RCMP's bid, backed by Industry Canada, to stem the spread of U.S. satellite dishes by harassing and persecuting the mostly small businesses offering Canadians equipment and U.S. addresses to receive U.S. programming.
Alas, from reviewing the legal terrain, it's evident that the satellite wars are far from over. The Supreme Court, having agreed to hear an appeal of the B.C. case pitting Bell ExpressVu against Can-Am Satellites, could conceivably revive a key 1997 Federal Court decision "illegalizing" the grey market, despite the unassailable logic of the latest Ontario and B.C. judgments.
This is not how it was supposed to turn out when the Mulroney government debated broadcasting legislation over a decade ago. In 1988, Flora MacDonald, then the Minister of Communications, stated that "the legislation does not erect barriers against programming that is not Canadian." Led by Sheila Finestone, the Liberal Opposition unsuccessfully sought to introduce amendments that would have restricted foreign broadcasters without a domestic business presence from operating through local distributors, analogous to today's situation in the sale of U.S. satellite services in Canada.
But once the Liberals came into office, they seized on the opportunity created by the poor wording of the Radio Communications Act (RCA) eventually passed by the Conservatives. The RCA prohibits anyone from decoding an encrypted subscription programming signal unless authorized by the lawful distributor. While this seems merely to forbid smart "hack" cards designed to obtain programming without monthly subscription payments, the RCA restricts the term "lawful distributor" to an entity holding the rights to broadcast in Canada, which neither DISH Network nor DIRECTV, the two U.S. satellite services, have.
That lends the RCA to two possible interpretations: Either the decoding of foreign signals is absolutely prohibited, whether one pays for it or not, since there is no legally recognized distributor to give authorization; or, it is just the unauthorized decoding of Canadian satellite signals that is banned, leaving people free to subscribe to international services.
Judges truly respectful of democratic processes let Parliament restrict that which has not been clearly specified in the law, thereby opting for the second interpretation, in line with the Ontario and B.C. rulings. After all, Parliament could have easily been more explicit if it wanted to bar Canadians from receiving foreign signals. As the B.C. and Ontario justices also observed, any law subject to ambiguity that carries penal consequences (the RCA imposes a maximum one-year prison term) should be interpreted in the manner that least infringes upon individual freedom.
Activist judges, however, will tend towards the absolute prohibition of foreign signals, particularly if they are sympathetic to cultural nationalism. The sole dissenting judge in the B.C. case practically gave away her biases in referring to the United States as "the most culturally assertive country in the world." So did the Federal Court when it described the U.S. culture industry as "unfair competition," and suddenly shifted into rhetorical overdrive from dead legal prose by claiming that the legalization of U.S. satellite dishes "would fly in the face of broadcasting regulatory policy".
Such judges write Liberal satellite policy into the law by appealing to the vague statements of legislative purpose found in the Broadcasting Act calling for the defense and promotion of national identity, not recognizing that elected legislators are supposed to select the measures to fulfill the ends of culture policy. It's characteristic of their activism, too, that these judges resorted to a wholly separate law to mold the RCA to their liking.
Predicting the Supreme Court's doings can be very tricky, but it has not exactly been averse to bouts of judicial activism. It also tends to reflect elite opinion, if only because judges, being human and perhaps having more than their fair share of intellectual pride, want to be well regarded by their peers in the legal academy who write the essays and books that will ultimately decide their place in history. That place would be jeopardized were the court to take a swipe against cultural nationalism, the religion of Canada's intellectual classes.
But isn't prohibiting foreign satellite reception an obvious infringement of our Charter free-speech rights? Surprisingly enough, the issue has rarely come up in satellite litigation and may not do so again if the Supreme Court adopts the activists' interpretation of the RCA. Unless the law is thought to be ambiguous, it cannot be conformed to the Charter if there is no Charter challenge at issue, as is the case with the B.C. ruling under consideration.
Even if the Supreme Court finds the law to be ambiguous -- as it should, given the interpretive disagreements among judges thus far -- it must still determine if the violation of free speech involved is consistent with a free and democratic society. Arguably, the most relevant precedent here is the 1988 Quebec sign law case, in which the claim of defending a vulnerable culture was posed against free speech. Though the Supreme Court found French-only signs unconstitutional, it said the Quebec government can compel the greater visibility of French, as long as other languages are permitted in smaller print. Doesn't Canadian broadcasting policy essentially seek the same thing by requiring greater prominence for Canadian content while permitting foreign channels on a secondary basis?
Let's hope this analysis proves wrong. Otherwise, political action will become necessary to stop cultural nationalists and domestic media interests from controlling what Canadians can watch from abroad.
George Bragues teaches economics and philosophy at Toronto's Humber College.
Satellite wars far from over
Recent court rulings in Ontario and B.C. say there is no legal basis to prevent Canadians from receiving U.S. satellite programming. But will the Supreme Court weigh in on the side of cultural nationalism?
George Bragues
Paul Lachine
These are happy days for grey-market U.S. satellite dealers, their customers, and opponents of Canada's cultural protectionist regime. A recent string of court rulings in B.C. and Ontario found no basis in law for the RCMP's bid, backed by Industry Canada, to stem the spread of U.S. satellite dishes by harassing and persecuting the mostly small businesses offering Canadians equipment and U.S. addresses to receive U.S. programming.
Alas, from reviewing the legal terrain, it's evident that the satellite wars are far from over. The Supreme Court, having agreed to hear an appeal of the B.C. case pitting Bell ExpressVu against Can-Am Satellites, could conceivably revive a key 1997 Federal Court decision "illegalizing" the grey market, despite the unassailable logic of the latest Ontario and B.C. judgments.
This is not how it was supposed to turn out when the Mulroney government debated broadcasting legislation over a decade ago. In 1988, Flora MacDonald, then the Minister of Communications, stated that "the legislation does not erect barriers against programming that is not Canadian." Led by Sheila Finestone, the Liberal Opposition unsuccessfully sought to introduce amendments that would have restricted foreign broadcasters without a domestic business presence from operating through local distributors, analogous to today's situation in the sale of U.S. satellite services in Canada.
But once the Liberals came into office, they seized on the opportunity created by the poor wording of the Radio Communications Act (RCA) eventually passed by the Conservatives. The RCA prohibits anyone from decoding an encrypted subscription programming signal unless authorized by the lawful distributor. While this seems merely to forbid smart "hack" cards designed to obtain programming without monthly subscription payments, the RCA restricts the term "lawful distributor" to an entity holding the rights to broadcast in Canada, which neither DISH Network nor DIRECTV, the two U.S. satellite services, have.
That lends the RCA to two possible interpretations: Either the decoding of foreign signals is absolutely prohibited, whether one pays for it or not, since there is no legally recognized distributor to give authorization; or, it is just the unauthorized decoding of Canadian satellite signals that is banned, leaving people free to subscribe to international services.
Judges truly respectful of democratic processes let Parliament restrict that which has not been clearly specified in the law, thereby opting for the second interpretation, in line with the Ontario and B.C. rulings. After all, Parliament could have easily been more explicit if it wanted to bar Canadians from receiving foreign signals. As the B.C. and Ontario justices also observed, any law subject to ambiguity that carries penal consequences (the RCA imposes a maximum one-year prison term) should be interpreted in the manner that least infringes upon individual freedom.
Activist judges, however, will tend towards the absolute prohibition of foreign signals, particularly if they are sympathetic to cultural nationalism. The sole dissenting judge in the B.C. case practically gave away her biases in referring to the United States as "the most culturally assertive country in the world." So did the Federal Court when it described the U.S. culture industry as "unfair competition," and suddenly shifted into rhetorical overdrive from dead legal prose by claiming that the legalization of U.S. satellite dishes "would fly in the face of broadcasting regulatory policy".
Such judges write Liberal satellite policy into the law by appealing to the vague statements of legislative purpose found in the Broadcasting Act calling for the defense and promotion of national identity, not recognizing that elected legislators are supposed to select the measures to fulfill the ends of culture policy. It's characteristic of their activism, too, that these judges resorted to a wholly separate law to mold the RCA to their liking.
Predicting the Supreme Court's doings can be very tricky, but it has not exactly been averse to bouts of judicial activism. It also tends to reflect elite opinion, if only because judges, being human and perhaps having more than their fair share of intellectual pride, want to be well regarded by their peers in the legal academy who write the essays and books that will ultimately decide their place in history. That place would be jeopardized were the court to take a swipe against cultural nationalism, the religion of Canada's intellectual classes.
But isn't prohibiting foreign satellite reception an obvious infringement of our Charter free-speech rights? Surprisingly enough, the issue has rarely come up in satellite litigation and may not do so again if the Supreme Court adopts the activists' interpretation of the RCA. Unless the law is thought to be ambiguous, it cannot be conformed to the Charter if there is no Charter challenge at issue, as is the case with the B.C. ruling under consideration.
Even if the Supreme Court finds the law to be ambiguous -- as it should, given the interpretive disagreements among judges thus far -- it must still determine if the violation of free speech involved is consistent with a free and democratic society. Arguably, the most relevant precedent here is the 1988 Quebec sign law case, in which the claim of defending a vulnerable culture was posed against free speech. Though the Supreme Court found French-only signs unconstitutional, it said the Quebec government can compel the greater visibility of French, as long as other languages are permitted in smaller print. Doesn't Canadian broadcasting policy essentially seek the same thing by requiring greater prominence for Canadian content while permitting foreign channels on a secondary basis?
Let's hope this analysis proves wrong. Otherwise, political action will become necessary to stop cultural nationalists and domestic media interests from controlling what Canadians can watch from abroad.
George Bragues teaches economics and philosophy at Toronto's Humber College.