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| Montreal, June 15, 2004 / No 143 |
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by
Harry Valentine
Beginning on June 24, 2004, a constitutional challenge to certain aspects of Canada's Radiocommunications Act is scheduled to be heard in a courtroom in Drummondville, Quebec. There are several contentious issues in this act, including the claim that the government of Canada owns and controls all air wave frequencies in Canada that are below 3-gigahertz (3-trillion cycles per second). Radiowaves were never created by government. The ability of the air waves to transmit information occurs as a natural phenomenon. Astronomical phenomena such as pulsars and quasars convert mass into energy that travels across the universe in the form of electromagnetic waves, including a very wide spectrum of "radio" wave frequencies. The state has no legitimate basis to claim ownership or control over the airwaves. |
| Control
over airwaves
The sound of human speech propagates on air waves at frequencies between 20 and 20,000-cycles per second. Through the Radiocommunications Act, the government of Canada claims control over airwave frequencies below 3-trillion cycles per second, a range which includes the sound of human speech. Private citizens who engage in freedom of speech theoretically violate the Radiocommunications Act and could subsequently be charged. When people speak into a microphone to reach a larger audience, their speech is "modified by technological means," an "offense" for which they could theoretically be charged for having violated the Radiocommunications Act. Although the government claims to be regulating the airwaves due to perceived limitations in broadcasting capacity, a previous QL article (see TELECOMMUNICATIONS WITHOUT ECONOMIC REGULATION, le QL, no 137) on this subject suggested that the total capacity to transmit information on the airwaves could in fact approach infinity. By exerting control over airwaves under 3-gigahertz, the government has given itself the power to restrict the size of audience to whom any individual citizen can speak. Citizens wishing to speak to a large audience could theoretically be required to seek official permission in order to do so. Canada's Charter of Rights and Freedoms grants all citizens the right to freedom of speech as well as the right to freedom of the media, making the government's claim of control over air wave frequencies below 3-gigahertz, unconstitutional. If Canada's constitution has any validity, that is, if it is still the supreme law of Canada, then the section of the Radiocommunications Act that claims government control over airwaves below 3-gigahertz needs to be repealed. By maintaining control over airwave frequencies below 3-gigahertz, the federal government has restricted the freedom to broadcast for the benefit of certain politically favoured parties. The constitution states that all persons are equal under and before the law. If the government actually upheld such equality, then any Canadian citizen wishing to communicate over the airwaves would have equal right and freedom to do so. With respect to satellite pay-TV signal distributors broadcasting encrypted transmissions, Canada's federal government has acted to recognise and uphold property rights with regard to these encrypted signals, which do trespass on to the property of people who do not subscribe to such services and without their permision. These property owners are forbidden by force of law from decrypting any encrypted broadcasts that land on their property. In this regard, Canada's federal government has acted to violate the property rights of owners of real estate. The federal government may have set a legal precedent by recognising and upholding property rights for politically-favoured satellite TV signal distributors. The constitutional right to equality before and under the law may now oblige the federal government to also recognise and uphold the property rights of owners of real estate who are not subscribers to satellite TV broadcasts. When property rights are recognised and upheld, nobody has a right to trespass on to somebody else's property, except with the permission of the property owner. Canada's Radiocommunications Act actually upholds the property rights of the trespassing satellite TV signal distributors, whose signals trespass on to the properties of non-subscribers. These non-subscribers are prohibited from decoding these trespassing signals inside Canada, by force of law and under threat of severe penalty. Non-subscribers who decode encrypted satellite TV signals trespassing on to their own property are merely exercising the legitimate property rights. It is a violation of private property rights as well as an act of abuse of power by a government when it intrudes into private homes and harass the property owners who decrypt trespassing commercial telecommunications signals. It is act of perversion of a nation's justice system for any government to protect the interests of a trespasser that shows disregard for somebody else's private property rights. Satellite pay-TV signals can be protected from unauthorised decryption by using a more advanced telecommunications technology that would only transmit revenue signals to subscribers. If such technology were used, there would be no need for government agencies to violate the private property rights of home owners who choose to decode trespassing satellite TV signals. Access to the airwaves A previous article described a technology that would similtaneously resolve the problem of satellite signal "theft" while also respecting the property rights of non-subscribers (see TYRANNY IN CANADIAN TELECOMMUNICATIONS, le QL, no 140). A more sophisticated future satellite TV transmission technology would only transmit revenue satellite TV signals to subscribers, using multiplexed confined beams controlled by GPS (globalpositioning satellite) technology. However, such a technological advancement is of little interest to a government bent on protecting the commercial interests of politically favoured companies. Such governmental action is ultimately intended to prevent future legitimate competition from developing in the field of satellite TV broadcasting services.
Over the past three months, American aviation engineer Burt Rutan demonstrated a re-usable, low-cost, sub-orbital aircraft able to fly at supersonic speeds and capable of launching telecommunications and weather satellites into space, at drastrically reduced costs. As the launching cost of satellites into space decreases, advances in animation technology and digital video disc (DVD) technology is not only reducing the cost of producing several types of documentaries and movies, it is also reducing the overall cost of providing future home entertainment. In a regulatory-free environment, groups of broadcasters could pool-fund the low-cost launching of a telecommunications satellite into space, saving the cost of erecting telecommuncations towers. Several broadcasting companies could simultaneously transmit signals on different channels from such a satellite, reaching a far wider audience across Canada and offering them free, advertiser-paid satellite TV broadcasting services. The reduced cost of future home entertainment programs would make viable advertiser-paid satellite TV services a distinct future possibility. Unfortunately, this kind of future competing satellite TV service will ultimately be prevented from evolving in Canada, due to statutes contained in the Radiocommunications Act that protect the commercial interest of politically-favoured services from legitimate competition. However, a solution to this problem is possible. Total economic deregulation of Canadian telecommunications and the closure of the CRTC would ensure that the right to equality before and under the law, the right to freedom of speech as well as property rights would be upheld in Canadian broadcasting. Such deregulation could pave the way for low-cost, advertiser-paid satellite TV services to evolve in Canada. The Montreal Economic Institute has published a study that pertains to deregulating telecommunications in Canada (see Do we still need to regulate telephone services?). Previous QL articles (see TELECOMMUNICATIONS WITHOUT ECONOMIC REGULATION, Part 1 & 2) described a variety of evolving technologies that can deliver telecommunications services to customers, in a regulatory-free environment. For example, the telephone companies and the cable TV companies can both provide competing combined telephone, television and internet services to customers, by applying multiplexing technology to their telephone lines and to their coaxial cable systems. In a deregulated telecommunications environment, only a very small number of airwave frequencies need be reserved for emergency use (police, fire, national defense, marine services, ambulance and other legitimate emergency services), where signal encryption technology may be applied. In the future, the need to encrypt commercial signal broadcasts would become unnecessary. Outside of the few reserved emergency services air wave frequencies, there would be no need for the state to restrict citizens' access to the airwaves. An unregulated telecommunications free market has its own unique mechanisms to non-coercively regulate the air waves. As an organised protest against government telecommunications policy, groups of citizens could arrange for encrypted signals to be decoded outside of Canada, then be re-broadcast into Canada using shielded antennae technology transmitting on vacant UHF TV channels. Such a protest could compel the federal government to eventually revise its telecommunications policies in accordance with Canada's Charter of rights and freedoms, instead of in accordance with its notwithstanding clause. The most effective form of telecommunications regulatory reform would be total economic deregulation, including the repeal of Canada's Radiocommunications Act and permanently closing down the CRTC. 
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