Changing Channels

Primary Author: 
Peter S. Grant
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Renowned advocate and legal trailblazer Peter S. Grant has acted for – and against – virtually all of the major players in the Canadian broadcast and telecommunications industry. His résumé features stints as a rapporteur for UNESCO, Special Counsel for the CRTC, Broadcasting Arbitrator for Canada’s political parties, and advocate for the underdog in the David-and-Goliath struggle to expand Canada’s culture industries.

In his sweeping memoir, Changing Channels: Confessions of a Canadian Communications Lawyer, Grant affords readers an insider’s glimpse into some of the biggest changes in the history of Canadian communications policy. Interspersed with fond recollections of his hometown of Kapuskasing and anecdotes of his growing family, Grant provides an eye-opening account of the Canadian communications industries. He documents his role in regulating the telecom carriers, increasing competition among service providers, and acting for dozens of broadcast programming services in front of the CRTC.

Grant’s reasoned prose highlights his far-reaching expertise in all areas of communications law and cultural policy, and makes his story compelling to anyone who has picked up a phone or turned on a television set.

Table of contents

INTRODUCTION: A SHOWDOWN IN PARIS

1. KAPUSKASING
     About My Father
     About My Mother
     Early Years
     High School
     Summer Jobs
     Religion
     My Return to Kap Years Later

2. UNIVERSITY
     First Year at Victoria College
     My Musical Life
     Radisson and Groseilliers
     Life at Victoria College
     Horizon Holidays
     Law School or Music?
     First Year Law and “The Spider”

3. BECOMING A COMMUNICATIONS LAWYER
     How It All Started
     Articling at McCarthy & McCarthy
     Researching and Teaching Communications Law
     Gloria
     Me and Uri Geller
     Bob Richmond and MusicFest Canada
     How My Communications Law Career Began
     UNESCO
     The Border Broadcasting War

4. WORKING FOR THE CRTC
     Being Seconded to the CRTC
     Regulating the Telephone Companies
     Support Structures
     Telesat Canada
     Challenge Communications
     Decision 79-11: The First Interconnection Case
     Acting for the Cultural Industries
     Freedom of Information

5. RETURN TO MCCARTHYS
     Return to McCarthy & McCarthy
     Fighting Bell Canada for Fun and Profit
     Acting for People with Disabilities
     Some Early Broadcast Cases
     First Choice
     The Leaders Debates

6. FAMILY MATTERS
     Grace
     Family Matters
     The Garage

7. COMMUNICATIONS LAW IN ACTION
     Pursuing a New FM Station in Toronto
     The Armstrong Case
     Family Channel
     Expanding into Entertainment Law
     The Bell Dispute
     Standard Radio
     The Canadian Retransmission Collective
     Showcase
     Television in the Alternative
     History Television
     How the Business News Network Succeeded
     Work for Alliance Atlantis
     Should Cable Systems Support Canadian Broadcasters?
     Television Drama
     Acting as the Broadcasting Arbitrator
     The Ontario ACCISS Study
     Law Society Conferences and the Broadcast Handbooks
     The Craig Broadcast Story
     How MTV Came to Canada

8. BRANCHING OUT
     Trade Law and Cultural Policy
     The Split-Run Case
     The Country Music Case
     The UNESCO Cultural Diversity Convention
     Direct-to-Home Satellite Services
     Cable Television in the Bahamas
     Sri Lanka
     Grant Buchanan
     RAI
     Blockbusters and Trade Wars
     Chapters/Indigo
     My Changing Relationship with Bell Canada
     Should Internet Service Providers Contribute to Canadian Content?

CHANGING CHANNELS
     The Evolution of Communications and Cultural Policy
     Consolidation
     Copyright and Convergence

A concluding chapter with up-to-date rulings and summaries is to come.

Unpublished endorsement

‘Peter Grant’s memoir, based on a life acting for the underdog in Canada’s cultural industries, is a must-read for anyone interested in cultural policy.’

—Maureen Parker, Executive Director, Writers Guild of Canada

Introduction or preface

Showdown in Paris

It was a crisp fall day in Paris. Tourists lined up as usual to ascend the elevators to the top of the Eiffel Tower. From there, they could see the UNESCO headquarters only a few blocks away. Built in 1958 at the Place de Fontenoy, the UNESCO complex is easy to recognize. The main building is a Y-shaped structure that has won many architectural awards. The conference venue is a large accordion-shaped building with fluted concrete walls and a copper-plated fluted roof. And in its largest conference room, delegates from over 150 countries were engaged on that day – October 20, 2005 – in the final day of arguments concerning a proposed new international treaty.

This was no ordinary debate, for this was no ordinary treaty. It was a treaty first suggested by a blue-ribbon trade advisory panel in Canada five and a half years earlier. It dealt with the delicate subject of cultural expression, as seen in books, magazines, music, film and television. The long and rather convoluted name of the treaty was the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. The treaty had thirty-five articles and it sought to enshrine the idea that countries were entitled to support space and choice for their local cultural expression without prohibiting foreign expression, and without fear of trade retaliation.

The convention was highly controversial. The United States, having rejoined UNESCO after a twelve-year absence, was trying feverishly to dilute the treaty or kill it. A few weeks earlier, it had played a last frantic card, a personal letter from Secretary of State Condoleezza Rice to all the UNESCO member country ambassadors. The letter criticized the draft convention, complained about the process and darkly hinted that the U.S. might reconsider its support for UNESCO if member states agreed with the draft.

The Canadian delegation sat nervously in the crowded room. The fate of the draft treaty was out of its hands. Each country was now entitled to speak in support or in opposition to the treaty and then to exercise its vote. The U.S. had risen a number of times to attack the draft treaty and to propose amendments to dilute it, but all had been voted down. Now, as each country made its final statement, the Canadians watched with amazement as their lobbying efforts paid off. Through La Francophonie, Canada had enlisted Senegal and Benin to support the treaty, and other African countries then joined the chorus. Latin America’s support was led by Brazil, as China and India led the Asian continent in support. But now the U.S. turned hopefully to the United Kingdom, its ally in so many other venues. This year, the U.K. was the spokesperson for the European Community as well as for itself, and as its representative stood to speak, the room hushed. He started by commending UNESCO for initiating the process. Then, calmly and forcefully, he dismantled each of the U.S. arguments in opposition to the treaty. The actual wording did not support any of these criticisms, he said. In fact, the treaty was very well balanced and should be strongly supported.

The voting began. As the Canadians watched in surprised delight, country after country rose to endorse the document. The final vote was overwhelming: 148 in favour, 2 opposed (the U.S. and Israel) and 4 abstaining.

On March 18, 2007, three months after at least thirty countries had ratified the treaty, it came into force. But it was widely understood that the Convention would not be seen to have broad applicability unless a significant number of countries – say fifty or sixty – ratified it. Soon enough this also occurred, and by the beginning of 2013, the Convention had been ratified by 125 countries around the world, including large and small players from every part of the globe. The international support for the Convention and the speed with which it has been ratified have been almost unprecedented. Even Australia, which abstained from voting for the treaty in 2005, had a change of government and ended up ratifying the treaty in 2009.

The result was a stunning victory for those who felt that the rules of international trade needed to defer to the desire for cultural diversity. At the same time, the debate revealed what appears to be an unbridgeable chasm between the position of the U.S. and the rest of the world.

 


 

On October 20, 2005, at the time the vote on the Convention took place in Paris, I was back in Toronto. I was practising communications law with the law firm of McCarthy Tétrault LLP. But I had a special reason for savouring the UNESCO victory: I had been a member of that blue-ribbon trade advisory panel in Canada and I was the one who first suggested the idea of an international treaty to support cultural diversity. Later, after the Canadian government had endorsed the idea and efforts had begun to convince other countries around the world to support it, I had co-written a book supporting the idea of such a treaty.

As I celebrated the UNESCO vote, I had occasion to reflect on my somewhat curious career. As a Canadian lawyer, I was practising in the area of communications and cultural policy. Of course, when I was called to the bar in 1969, there was no such thing as a “communications lawyer.” In that regard, I can immodestly take some credit for pioneering this field. At the same time, my experiences were at the centre of Canada’s coming of age in this area.

We are now in an era when the communications industry has “converged” to an unprecedented degree. Two decades ago, the big news was the entry of the telephone companies into broadcast distribution and the entry of the cable companies into telephony. But in the last decade, these same companies have acquired most of Canada’s programming services as well. This degree of consolidation is frankly unprecedented around the world.

My career exhibited the same convergence of content and carriage. My initial interest was in how the Canadian content rules applied to Canadian television. But I rapidly became interested in how the telephone companies were regulated, and I spent a number of years fighting Bell Canada for fun and profit. Later on, as my career developed, I also found myself attracted to the Canadian cultural industries – including book and magazine publishing, sound recording, and film and television production. This turned out to be highly prescient, since communications and cultural policy in this country are deeply intertwined.

My journey as a communications lawyer reflected Canada’s journey towards a distinctive place in the world of popular culture. In particular, I ended up being personally involved in the following stories:

  • How a number of popular Canadian television channels – including The Movie Network, Family Channel, Showcase, W Network, Business News Network and History Television – got their broadcast licences
  • How and why a number of Canadian-owned cultural industries, including Canadian book publishers and record companies, broke free from the multinational companies who dominate the field
  • How the cable companies and the telecom carriers took over the Canadian broadcasting industry and discovered the curious economics of Canadian content
  • The rise of the independent television-production industry in Canada and how it survives despite the dominance of Hollywood films and TV shows
  • The real story behind the Indigo-Chapters merger and how it has affected the creation and distribution of Canadian books
  • What happened when Sports Illustrated attempted to sell Canadian ads in its U.S. magazine and how Canada lost a battle at the World Trade Organization but ultimately won the war
  • What are the lessons of the past as Canada’s content creators seek to maintain their voices in the face of new technology

All these events involve Canada’s cultural industries and the government policies that support them. I was lucky enough to be a participant in them.

It may be surprising that someone coming from small-town Canada could be involved in all these happenings. Before I became a communications lawyer, in fact, I nourished the idea that I might become a composer and arranger of popular music. Obviously I got side-tracked. As I disclose in this memoir, my whole career as a lawyer focusing on Canadian content and communications law was based on a paper I wrote in my second year of law school.

But more about that later. First, how did it all get started?

authorPic

Peter S. Grant was born on November 26, 1941, and grew up in Kapuskasing, Ontario. He enrolled in Victoria College at the University of Toronto, and in addition to studying political science and economics – and later law – he spent two summers in the ‘Arrangers Workshop’ at the prestigious Eastman School of Music in Rochester, New York.

After being called to the bar in 1969, Grant joined McCarthy & McCarthy, currently McCarthy Tétrault, one of Canada’s largest law firms. Grant has since been instrumental in establishing the field of communications law in Canada, working as and Special Counsel to the CRTC, consulting for UNESCO, and acting as the Broadcasting Arbitrator for Canada. He is the author of numerous articles and publications, including the Canadian Broadcasting Regulatory Handbook as well as Blockbusters and Trade Wars: Popular Culture in a Globalized World, co-authored with Chris Wood. He currently sits as Counsel at McCarthy Tétrault, and as Adjunct Professor at the University of Toronto and York University. He lives in Toronto.

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