Telecommunications lawyers include a wide range of activities referrable to the regulated sectors of telecommunications, broadcasting and broadcast distribution. More precisely, it refers to activities regulated by the Department of Industry Canada pursuant to the Radiocommunication Act (and related regulations) and the Canadian Radio-television and Telecommunications Commission ("CRTC"), inter alia, pursuant to the Telecommunications Act (and related regulations).
Communications law is a term often used for practice related to activities regulated by the CRTC, inter alia, pursuant to the Broadcasting Act (and related regulations). Telecommunications lawyers advise companies whose activities are regulated directly by the CRTC and/or Industry Canada, as well as other companies whose activities might be affected by agency and department decisions. Communications lawyers tend to focus on licensing activity before the CRTC.
Other aspects of telecommunication law include telephone, telecommunications, online regulation and policy, telecommunications and multimedia, international negotiations and agreements. These governing statutes may be amended from time to time to include new forms of telecommunications.
Please note that the Lexpert directory has separate practice areas for:
The main objectives of Canadian telecommunication policy are to ensure the competitiveness and innovation of the telecommunications industry, and to provide for the needs of Canadians. These policies are enumerated in Section 7 of the Telecommunications Act.
Other objectives of the policy are to ensure the accessibility of a reliable and affordable telecommunications services for all Canadians; to ensure that regulations are relevant, efficient, and effective; and to contribute to the protection of privacy of Canadians.
Common law dictates that the telecommunications industry is subject to the exclusive federal jurisdiction and regulation, and not by the provincial or territorial legislation on the same matter. For this reason, the Innovation, Science and Economic Development Canada (ISED) is the federal government agency responsible for telecommunications in Canada.
Under the ISED, the Canadian Radio-television and Telecommunications Commission (CRTC) is the administrative tribunal which regulates the broadcasting and telecommunications industry in Canada. Since public interest is involved in this sector, the state is mandated to regulate such industry in behalf of and for the people.
The CRTC mainly implements the objectives of the Broadcasting Act, the Telecommunications Act, and Canada’s Anti-Spam Legislation. This is done through the CRTC’s licensing powers; review of mergers and acquisitions, or changes of ownership of a broadcasting and telecom entity; and by approving tariffs and other impositions on these entities. A telecommunications lawyer may represent both plaintiffs and clients around these laws.
Generally, the CRTC regulates broadcasters, such as TV, radio stations (both AM and FM), and telecom carriers (e.g., telephone companies). However, not all entities of the industry are regulated by the CRTC. The Commission’s regulating powers excludes newspapers and magazines. It also does not dwell on the artistic quality and the content of TV and radio programs, since these are based on the TV and radio’s creative processes. The retail rates for most communication services are also outside the jurisdiction of CRTC.
There are three main pieces of legislation which regulates the telecommunication and broadcasting industry in Canada, namely, (1) the Telecommunications Act 1993, (2) the Broadcasting Act, and the (3) Radiocommunications Act. For more details and further specifications of each Act, it may be referred or inquired from a telecommunications lawyer, who has the expertise on the field of telecom and broadcasting industry.
The Canadian Telecommunications Act (Telecom Act), which was enacted in 1993, is the Act that regulates telecommunications in Canada. Under the Telecom Act, “telecommunication” is the emission, transmission, or reception of any information or data, through an electromagnetic system, or a similar one (Section 2(1)). With this definition, the Telecom Act regulates all telecom entities in Canada, except for broadcasting activities which are regulated by the Broadcasting Act. Common law has also included internet service providers (ISPs) to be regulated by the Telecom Act.
Section 7 of the Telecom Act provides for the Canadian Telecommunications Policy, and these policy or statutory objectives are under the CRTC’s power to implement, as provided in Section 47 of the same Act. According to Section 24 of the Telecom Act, tariffs may also be imposed by the CRTC on any service by telecom carriers. While retail rates are not included in the regulatory powers of CRTC, the said Commission is empowered by the Telecom Act, through Section 27, to regulate other rates charged by telecom entities, such as wholesale prices it offers to resellers and other competitors.
The Broadcasting Act of Canada regulates the broadcasting of telecommunications and provides for the role of CRTC with regards to broadcasting to ensure that its contents align with the needs and interests of all Canadians. The Act is mainly divided into four parts:
Under Part I, the Act defines “broadcasting” as any transmission of programs by radio waves or other means of telecom directed to the public, whether such transmission is encrypted or not. Section 3 therein provides for the Broadcasting Policy of Canada, and Section 4 provides for the specific application of the Act.
The Part II of the Act establishes the powers of the CRTC with respect to the regulation and supervision of the Canadian broadcasting system in relation to the Broadcasting Policy of Canada under Section 3.
Part III permits the continuation of the Canadian Broadcasting Corporation (CBC), being the public broadcaster for both radio and television in Canada. The same Part also provides for the CBC’s incorporation, the roles of its officers, and other necessaries for its operation, in the pursuit of the journalistic and creative freedom granted to CBC.
Other provisions as to the methods of amendments and repeal, transitory provisions, and enforcement provisions are provided in Part IV.
The Radiocommunications Act governs the licensing, regulation, and certification of all radio equipment or radio communications equipment in Canada. Through the Act, the Minister of Industry is granted regulatory authority over the subject matters listed in Section 5 of the Act.
Several prohibitions are also included in the Act, such as the prohibition against the installation, operation, and possession of any radio apparatus without authorization (Section 4(1)); prohibition against the transmission of false or fraudulent messages (Section 9(1)(a)); prohibition against the interference or obstruction of any radiocommunication without any lawful excuse (Sectio 9(1)(b)); among others.
In addition to the regulations imposed by numerous legislations mentioned above, the Criminal Code of Canada defines other offences with regards to telecommunications. Under the provisions of Theft, Section 326 prohibits theft of telecom service, and Section 327 prohibits the possession of device to obtain use of telecom facility or service.
Theft of telecom service under Section 326 may be committed by any person who, without any right or colour of title, does any of following:
On the other hand, theft of the use of telecommunication facility or service under Section 327 may be committed by any person who – without payment of charges imposed by law or by the regulatory bodies, and without any lawful excuse – manufactures, possesses, sells, or offers to sell or distributes any instrument or device which is primarily used to obtain any telecom facility or service.
Under both crimes, the accused has the burden of proving that he/she has the colour of right to do any of the acts prescribed to extinguish his/her liability.
For further information on telecommunications, head down below for the list of the best telecommunications lawyers in Canada as ranked by Lexpert.
