Broadcasting Act, 1991
1. This Act may be cited as the Broadcasting Act, 1991
2. (1) In this Act,
"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;
["broadcasting receiving apparatus" "récepteur de radiodiffusion"]
"broadcasting receiving apparatus" means a device, or combination of devices, intended for or capable of being used for the reception of broadcasting;
["broadcasting undertaking" "entreprise de radiodiffusion"]
"broadcasting undertaking" includes a distribution undertaking, a programming undertaking and a network;
"Commission" means the Canadian Radio-television and Telecommunications Commission established by the Canadian Radio-television and Telecommunications Commission Act;
"Corporation" means the Canadian Broadcasting Corporation continued by section 36;
["distribution undertaking" "entreprise de distribution"]
"distribution undertaking" means an undertaking for the reception of broadcasting and the retransmission thereof by radio waves or other means of telecommunication to more that one permanent or temporary residence or dwelling unit or to another such undertaking;
"encrypted" means treated electronically or otherwise for the purpose of preventing intelligible reception;
"licence" means a licence to carry on a broadcasting undertaking issued by the Commission under this Act;
"Minister" means such member of the Queen's Privy Council for Canada as is designated by the Governor in Council as the Minister for the purposes of this Act;
The Governor in Council designated the Minister of Canadian Heritage as the Minister for the purposes of this Act, effective on July 12, 1996
"network" includes any operation where control over all or any part of the programs or program schedules of one or more broadcasting undertakings is delegated to another undertaking or person;
"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;
["programming undertaking" "entreprise de programmation"]
"programming undertaking" means an undertaking for the transmission of programs, either directly by radio waves or other means of telecommunication or indirectly through a distribution undertaking, for reception by the public by means of broadcasting receiving apparatus;
["radio waves" "ondes radioélectriques"]
"radio waves" means electromagnetic waves of frequencies lower than 3 000 GHz that are propagated in space without artificial guide;
["temporary network operation" "exploitation temporaire d'un réseau"]
"temporary network operation" means a network operation with respect to a particular program or a series of programs that extends over a period not exceeding sixty days.
[Meaning of "other means of telecommunication"]
(2) For the purposes of this Act, "other means of telecommunication" means any wire, cable, radio, optical or other electromagnetic system, or any similar technical system.
(3) This Act shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings.
Broadcasting Policy for Canada
3. (1) It is hereby declared as the broadcasting policy for Canada that
(a) the Canadian broadcasting system shall be effectively owned and controlled by Canadians;
(b) the Canadian broadcasting system, operating primarily in the English and French languages and comprising public, private and community elements, makes use of radio frequencies that are public property and provides, through its programming, a public service essential to the maintenance and enhancement of national identity and cultural sovereignty;
(c) English and French language broadcasting, while sharing common aspects, operate under different conditions and may have different requirements;
(d) the Canadian broadcasting system should
(i) serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada,
(ii) encourage the development of Canadian expression by providing a wide range of programming that reflects Canadian attitudes, opinions, ideas, values and artistic creativity, by displaying Canadian talent in entertainment programming and by offering information and analysis concerning Canada and other countries from a Canadian point of view,
(iii) through its programming and the employment opportunities arising out of its operations, serve the needs and interests, and reflect the circumstances and aspirations, of Canadian men, women and children, including equal rights, the linguistic duality and multicultural and multiracial nature of Canadian society and the special place of aboriginal peoples within that society, and
(iv) be readily adaptable to scientific and technological change;
(e) each element of the Canadian broadcasting system shall contribute in an appropriate manner to the creation and presentation of Canadian programming;
(f) each broadcasting undertaking shall make maximum use, and in no case less than predominant use, of Canadian creative and other resources in the creation and presentation of programming, unless the nature of the service provided by the undertaking, such as specialized content or format or the use of languages other than French and English, renders that use impracticable, in which case the undertaking shall make the greatest practicable use of those resources;
(g) the programming originated by broadcasting undertakings should be of high standard;
(h) all persons who are licensed to carry on broadcasting undertakings have a responsibility for the programs they broadcast;
(i) the programming provided by the Canadian broadcasting system should
(i) be varied and comprehensive, providing a balance of information, enlightenment and entertainment for men, women and children of all ages, interests and tastes,
(ii) be drawn from local, regional, national and international sources,
(iii) include educational and community programs,
(iv) provide a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern, and
(v) include a significant contribution from the Canadian independent production sector;
(j) educational programming, particularly where provided through the facilities of an independent educational authority, is an integral part of the Canadian broadcasting system;
(k) a range of broadcasting services in English and in French shall be extended to all Canadians as resources become available;
(l) the Canadian Broadcasting Corporation, as the national public broadcaster, should provide radio and television services incorporating a wide range of programming that informs, enlightens and entertains;
(m) the programming provided by the Corporation should
(i) be predominantly and distinctively Canadian,
(ii) reflect Canada and its regions to national and regional audiences, while serving the special needs of those regions,
(iii) actively contribute to the flow and exchange of cultural expression,
(iv) be in English and in French, reflecting the different needs and circumstances of each official language community, including the particular needs and circumstances of English and French linguistic minorities,
(v) strive to be of equivalent quality in English and in French,
(vi) contribute to shared national consciousness and identity,
(vii) be made available throughout Canada by the most appropriate and efficient means and as resources become available for the purpose, and
(viii) reflect the multicultural and multiracial nature of Canada;
(n) where any conflict arises between the objectives of the Corporation set out in paragraphs (l) and (m) and the interests of any other broadcasting undertaking of the Canadian broadcasting system, it shall be resolved in the public interest, and where the public interest would be equally served by resolving the conflict in favour of either, it shall be resolved in favour of the objectives set out in paragraphs (l) and (m);
(o) programming that reflects the aboriginal cultures of Canada should be provided within the Canadian broadcasting system as resources become available for the purpose;
(p) programming accessible by disabled persons should be provided within the Canadian broadcasting system as resources become available for the purpose; (q) without limiting any obligation of a broadcasting undertaking to provide the programming contemplated by paragraph (i), alternative television programming services in English and in French should be provided where necessary to ensure that the full range of programming contemplated by that paragraph is made available through the Canadian broadcasting system;
(r) the programming provided by alternative television programming services should
(i) be innovative and be complementary to the programming provided for mass audiences,
(ii) cater to tastes and interests not adequately provided for by the programming provided for mass audiences, and include programming devoted to culture and the arts,
(iii) reflect Canada's regions and multicultural nature,
(iv) as far as possible, be acquired rather than produced by those services, and
(v) be made available throughout Canada by the most cost-efficient means;
(s) private networks and programming undertakings should, to an extent consistent with the financial and other resources available to them,
(i) contribute significantly to the creation and presentation of Canadian programming, and
(ii) be responsive to the evolving demands of the public; and
(t) distribution undertakings
(i) should give priority to the carriage of Canadian programming services and, in particular, to the carriage of local Canadian stations,
(ii) should provide efficient delivery of programming at affordable rates, using the most effective technologies available at reasonable cost,
(iii) should, where programming services are supplied to them by broadcasting undertakings pursuant to contractual arrangements, provide reasonable terms for the carriage, packaging and retailing of those programming services, and
(iv) may, where the Commission considers it appropriate, originate programming, including local programming, on such terms as are conducive to the achievement of the objectives of the broadcasting policy set out in this subsection, and in particular provide access for underserved linguistic and cultural minority communities.
(2) It is further declared that the Canadian broadcasting system constitutes a single system and that the objectives of the broadcasting policy set out in subsection (1) can best be achieved by providing for the regulation and supervision of the Canadian broadcasting system by a single independent public authority.
[Binding on Her Majesty]
4. (1) This Act is binding on Her Majesty in right of Canada or a province.
(2) This Act applies in respect of broadcasting undertakings carried on in whole or in part within Canada or on board
(a) any ship, vessel or aircraft that is
(i) registered or licensed under an Act of Parliament, or
(ii) owned by, or under the direction or control of, Her Majesty in right of Canada or a province;
(b) any spacecraft that is under the direction or control of
(i) Her Majesty in right of Canada or a province,
(ii) a citizen or resident of Canada, or
(iii) a corporation incorporated or resident in Canada; or
(c) any platform, rig, structure or formation that is affixed or attached to land situated in those submarine areas adjacent to the coast of Canada and extending throughout the natural prolongation of the land territory of Canada to the outer edge of the continental margin or to a distance of two hundred nautical miles from the baselines from which the breadth of the territorial sea of Canada is measured, whichever is greater.
[For greater certainty]
(3) For greater certainty, this Act applies in respect of broadcasting undertakings whether or not they are carried on for profit or as part of, or in connection with, any other undertaking or activity.
(4) For greater certainty, this Act does not apply to any telecommunications common carrier, as defined in the Telecommunications Act, when acting solely in that capacity.
OBJECTS AND POWERS OF THE COMMISSION IN RELATION TO BROADCASTING
5. (1) Subject to this Act and the Radiocommunication Act and to any directions to the Commission issued by the Governor in Council under this Act, the Commission shall regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy set out in subsection 3(1) and, in so doing, shall have regard to the regulatory policy set out in subsection (2).
(2) The Canadian broadcasting system should be regulated and supervised in a flexible manner that
(a) is readily adaptable to the different characteristics of English and French language broadcasting and to the different conditions under which broadcasting undertakings that provide English or French language programming operate;
(b) takes into account regional needs and concerns;
(c) is readily adaptable to scientific and technological change;
(d) facilitates the provision of broadcasting to Canadians;
(e) facilitates the provision of Canadian programs to Canadians;
(f) does not inhibit the development of information technologies and their application or the delivery of resultant services to Canadians; and
(g) is sensitive to the administrative burden that, as a consequence of such regulation and supervision, may be imposed on persons carrying on broadcasting undertakings.
(3) The Commission shall give primary consideration to the objectives of the broadcasting policy set out in subsection 3(1) if, in any particular matter before the Commission, a conflict arises between those objectives and the objectives of the regulatory policy set out in subsection (2).
(4) Where a broadcasting undertaking is subject to the Employment Equity Act, the powers granted to the Commission under this Act do not extend to the regulation or supervision of matters concerning employment equity in relation to that broadcasting undertaking.
[Policy guidelines and statements]
6. The Commission may from time to time issue guidelines and statements with respect to any matter within its jurisdiction under this Act, but no such guidelines or statements issued by the Commission are binding on the Commission.
7. (1) Subject to subsection (2) and section 8, the Governor in Council may, by order, issue to the Commission directions of general application on broad policy matters with respect to
(a) any of the objectives of the broadcasting policy set out in subsection 3(1); or
(b) any of the objectives of the regulatory policy set out in subsection 5(2).
(2) No order may be made under subsection (1) in respect of the issuance of a licence to a particular person or in respect of the amendment, renewal, suspension or revocation of a particular licence.
(3) An order made under subsection (1) is binding on the Commission beginning on the day on which the order comes into force and, subject to subsection (4), shall, if it so provides, apply with respect to any matter pending before the Commission on that day.
(4) No order made under subsection (1) may apply with respect to a licensing matter pending before the Commission where the period for the filing of interventions in the matter has expired unless that period expired more than one year before the coming into force of the order.
[Publication and tabling]
(5) A copy of each order made under subsection (1) shall be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the making of the order.
(6) The Minister shall consult with the Commission before the Governor in Council makes an order under subsection (1).
[Procedure for issuance of policy directions]
8. (1) Where the Governor in Council proposes to make an order under section 7, the Minister shall cause the proposed order to be
(a) published by notice in the Canada Gazette, which notice shall invite interested persons to make representations to the Minister with respect to the proposed order; and
(b) laid before each House of Parliament.
[Referral to committee]
(2) Where a proposed order is laid before a House of Parliament pursuant to subsection (1), it shall stand referred to such committee thereof as the House considers appropriate to deal with the subject-matter of the order.
[Implementation of proposal]
(3) The Governor in Council may, after the expiration of forty sitting days of Parliament after a proposed order is laid before both Houses of Parliament in accordance with subsection (1), implement the proposal by making an order under section 7, either in the form proposed or revised in such manner as the Governor in Council deems advisable.
(4) The Minister shall consult with the Commission before a proposed order is published or is laid before a House of Parliament under subsection (1).
[Definition of "sitting day of Parliament"]
(5) In this section, "sitting day of Parliament" means a day on which either House of Parliament sits.
9. (1) Subject to this Part, the Commission may, in furtherance of its objects,
(a) establish classes of licences;
(b) issue licences for such terms not exceeding seven years and subject to such conditions related to the circumstances of the licensee
(i) as the Commission deems appropriate for the implementation of the broadcasting policy set out in subsection 3(1), and
(ii) in the case of licences issued to the Corporation, as the Commission deems consistent with the provision, through the Corporation, of the programming contemplated by paragraphs 3(1)(l) and (m);
(c) amend any condition of a licence on application of the licensee or, where five years have expired since the issuance or renewal of the licence, on the Commission's own motion;
(d) issue renewals of licences for such terms not exceeding seven years and subject to such conditions as comply with paragraph (b);
(e) suspend or revoke any licence;
(f) require any licensee to obtain the approval of the Commission before entering into any contract with a telecommunications common carrier for the distribution of programming directly to the public using the facilities of that common carrier;
(g) require any licensee who is authorized to carry on a distribution undertaking to give priority to the carriage of broadcasting; and
(h) require any licensee who is authorized to carry on a distribution undertaking to carry, on such terms and conditions as the Commission deems appropriate, programming services specified by the Commission.
(2) Notwithstanding subsections (1) and 28(3), no licence of a distribution undertaking may be made subject to a condition that requires the licensee to substitute replacement material for commercial messages carried in a broadcasting signal received by that licensee.
(3) Subsection (2) does not apply in respect of a condition of a licence renewed after October 4, 1987 where before that date the licensee was complying with such a condition.
(4) The Commission shall, by order, on such terms and conditions as it deems appropriate, exempt persons who carry on broadcasting undertakings of any class specified in the order from any or all of the requirements of this Part or of a regulation made under this Part where the Commission is satisfied that compliance with those requirements will not contribute in a material manner to the implementation of the broadcasting policy set out in subsection 3(1).
10. (1) The Commission may, in furtherance of its objects, make regulations
(a) respecting the proportion of time that shall be devoted to the broadcasting of Canadian programs;
(b) prescribing what constitutes a Canadian program for the purposes of this Act;
(c) respecting standards of programs and the allocation of broadcasting time for the purpose of giving effect to the broadcasting policy set out in subsection 3(1);
(d) respecting the character of advertising and the amount of broadcasting time that may be devoted to advertising;
(e) respecting the proportion of time that may be devoted to the broadcasting of programs, including advertisements or announcements, of a partisan political character and the assignment of that time on an equitable basis to political parties and candidates;
(f) prescribing the conditions for the operation of programming undertakings as part of a network and for the broadcasting of network programs, and respecting the broadcasting times to be reserved for network programs by any such undertakings;
(g) respecting the carriage of any foreign or other programming services by distribution undertakings;
(h) for resolving, by way of mediation or otherwise, any disputes arising between programming undertakings and distribution undertakings concerning the carriage of programming originated by the programming undertakings;
(i) requiring licensees to submit to the Commission such information regarding their programs and financial affairs or otherwise relating to the conduct and management of their affairs as the regulations may specify; (j) respecting the audit or examination of the records and books of account of licensees by the Commission or persons acting on behalf of the Commission; and
(k) respecting such other matters as it deems necessary for the furtherance of its objects.
(2) A regulation made under this section may be made applicable to all persons holding licences or to all persons holding licences of one or more classes.
[Publication of proposed regulation]
(3) A copy of each regulation that the Commission proposes to make under this section shall be published in the Canada Gazette and a reasonable opportunity shall be given to licensees and other interested persons to make representations to the Commission with respect thereto.
[Regulations respecting licence fees]
11. (1) The Commission may make regulations
(a) with the approval of the Treasury Board, establishing schedules of fees to be paid by licensees of any class;
(b) providing for the establishment of classes of licensees for the purposes of paragraph (a);
(c) providing for the payment of any fees payable by a licensee, including the time and manner of payment;
(d) respecting the interest payable by a licensee in respect of any overdue fee; and
(e) respecting such other matters as it deems necessary for the purposes of this section.
(2) Regulations made under paragraph (1)(a) may provide for fees to be calculated by reference to any criteria that the Commission deems appropriate, including by reference to
(a) the revenues of the licensees;
(b) the performance of the licensees in relation to objectives established by the Commission, including objectives for the broadcasting of Canadian programs; and
(c) the market served by the licensees.
(3) No regulations made under subsection (1) shall apply to the Corporation or to licensees carrying on programming undertaking on behalf of Her Majesty in right of a province.
[Debt due to Her Majesty]
(4) Fees payable by a licensee under this section and any interest thereon constitute a debt due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction.
[Publication of proposed regulations]
(5) A copy of each regulation that the Commission proposes to make under this section shall be published in the Canada Gazette and a reasonable opportunity shall be given to licensees and other interested persons to make representations to the Commission with respect thereto.
12. (1) Where it appears to the Commission that
(a) any person has failed to do any act or thing that the person is required to do pursuant to this Part or to any regulation, licence, decision or order made or issued by the Commission under this Part, or has done or is doing any act or thing in contravention of this Part or of any such regulation, licence, decision or order, or
(b) the circumstances may require the Commission to make any decision or order or to give any approval that it is authorized to make or give under this Part or under any regulation or order made under this Part, the Commission may inquire into, hear and determine the matter.
(2) The Commission may, by order, require any person to do, forthwith or within or at any time and in any manner specified by the Commission, any act or thing that the person is or may be required to do pursuant to this Part or to any regulation, licence, decision or order made or issued by the Commission under this Part and may, by order, forbid the doing or continuing of any act or thing that is contrary to this Part or to any such regulation, licence, decision or order.
[Referral to Commission]
(3) Where an inquiry under subsection (1) is heard by a panel established under subsection 20(1) and the panel issues an order pursuant to subsection (2) of this section, any person who is affected by the order may, within thirty days after the making thereof, apply to the Commission to reconsider any decision or finding made by the panel, and the Commission may rescind or vary any order or decision made by the panel or may rehear any matter before deciding it.
[Enforcement of mandatory orders]
13. (1) Any order made under subsection 12(2) may be made an order of the Federal Court or of any superior court of a province and is enforceable in the same manner as an order of the court.
(2) To make an order under subsection 12(2) an order of a court, the usual practice and procedure of the court in such matters may be followed or, in lieu thereof, the Commission may file with the registrar of the court a certified copy of the order, and thereupon the order becomes an order of the court.
[Effect of variation or rescission]
(3) Where an order that has been made an order of a court is rescinded or varied by a subsequent order of the Commission, the order of the court shall be deemed to have been cancelled and the subsequent order may, in the same manner, be made an order of the court.
14. (1) The Commission may undertake, sponsor, promote or assist in research relating to any matter within its jurisdiction under this Act and in so doing it shall, wherever appropriate, utilize technical, economic and statistical information and advice from the Corporation or departments or agencies of the Government of Canada.
[Review of technical matters]
(2) The Commission shall review and consider any technical matter relating to broadcasting referred to the Commission by the Minister and shall make recommendations to the Minister with respect thereto.
[Hearings and reports]
15. (1) The Commission shall, on request of the Governor in Council, hold hearings or make reports on any matter within the jurisdiction of the Commission under this Act.
(2) The Minister shall consult with the Commission with regard to any request proposed to be made by the Governor in Council under subsection (1).
[Powers respecting hearings]
16. The Commission has, in respect of any hearing under this Part, with regard to the attendance, swearing and examination of witnesses at the hearing, the production and inspection of documents, the enforcement of its orders, the entry and inspection of property and other matters necessary or proper in relation to the hearing, all such powers, rights and privileges as are vested in a superior court of record.
[Authority re questions of fact or law]
17. The Commission has authority to determine questions of fact or law in relation to any matter within its jurisdiction under this Act.
Hearings and Procedure
[Where public hearing required]
18. (1) Except where otherwise provided, the Commission shall hold a public hearing in connection with
(a) the issue of a licence, other than a licence to carry on a temporary network operation;
(b) the suspension or revocation of a licence;
(c) the establis