© 2004  Karen Selick
CHOI Case--Free Speech AND Property Rights
An edited version of this article first appeared in the November/December, 2004 issue of Canadian Lawyer under the title "Airwaves, property rights and the CRTC".  If you wish to reproduce this article, click here for copyright info.


CHOI Case --Free Speech AND  Property Rights

This summer’s episode in which Quebec radio station CHOI almost lost its broadcasting licence over the use of allegedly offensive language has a lot of Canadians wondering why we tolerate the continued existence of the Canadian Radio-television and Telecommunications Commission (CRTC).

With the advent of the internet and satellite TV, the CRTC has already become something of an anachronism.  Those who don’t like its protectionist Canadian content rules or prissy broadcast standards can escape them by tuning in foreign broadcasts via computer or grey-market dish antenna.   Upcoming technological improvements promise to provide us with even greater opportunities to circumvent the culture cops.  But since most of us still have radios in our homes and cars and like to listen occasionally to local news, it will be a while before radio broadcasting over the airwaves becomes completely obsolete.  

Radio waves (or rather, broadcast frequencies) are considered public property in Canada.  The CRTC exists to manage them on behalf of “the public”.  While many Canadians have taken the first step of questioning the CRTC’s judgment and motives, few have gone beyond that to the more fundamental question:  why should the airwaves be public property in the first place?   That’s just the way things have been for about the past 90 years, and most of us simply can’t conceive of any alternative.

But there’s no more justification for the state to have nationalized the airwaves than there would be for the state to nationalize any other means of communication.  Imagine the outcry there would be if the government announced that henceforth it would be the sole legal supplier of newsprint in the country and newspapers would be allowed to publish only under government licence, revocable at the government’s pleasure.  This would be a clearly unacceptable infringement on freedom of speech.

You can search the CRTC website in vain for any hint as to how this came about.  Although it contains a history of broadcasting in Canada going all the way back to 1852, nowhere does it mention the crucial moment when the government seized ownership of the airwaves.  It’s unfathomable to CRTC personnel, I guess, that anyone would care.

The history of the airwaves in the U.S. is easier to ferret out.  In the early 1900s, when radio was in its infancy, pioneers in the broadcasting field poured money, labour and ingenuity into their enterprises.  They assumed they would be able to acquire property rights in the radio frequencies they had staked out, just as prospectors can acquire property rights in the mineral deposits they discover, and artists get copyrights in the works they produce.

Signal interference was the obvious problem, but it wasn’t long before U.S. courts began developing a body of jurisprudence in the normal common-law way to resolve this issue without state regulation.  Some stations worked out contracts with their competitors regarding frequencies or broadcasting times, and the courts enforced them.  In one prominent case, the court upheld the notion that a radio station had “homesteaded” its right to a particular frequency by prior use, just as merchants acquired rights in trade marks and trade names or landowners acquired water rights in adjacent streams.

All of that was lost when the U.S. came under pressure to sign an international treaty with other countries, every one of which treated the airwaves as national state property.  The U.S. passed similar legislation eliminating the private property in and marketability of broadcasting rights. 

But some Americans, bless ’em, still harbour these silly notions that maybe it’s not a good idea for the state to have the arbitrary power to grant and revoke broadcasting licences.  Maybe it’s because their constitution, unlike ours, protects not only freedom of speech, but also property rights.  (Note that if CHOI loses its licence, a $25 million business will instantly vanish into thin air.)

So periodically, some Americans raise the issue of privatizing the airwaves again.  And every time it happens, the statists come out of the woodwork ranting about how awful  it would be.  Evil multi-national corporations would control all communications, blah, blah, blah.

Why these people are so afraid of giant corporations but not afraid of giant government is something I have never understood.  Corporations, at least, do not have a legal monopoly on the use of force.

The government-lovers seem totally oblivious to be to the role they themselves have played in promoting corporate concentration.  They seem to think you can pile laws and regulations onto businesses ad infinitum, without consequences.   In fact, the more burdensome regulations become, the less likely it is that small businesses will survive.  If it’s a full-time task for someone to keep up to date with all the labour regulations, the tax regulations, the human rights laws, the broadcast regulations, etc. then the business with 1,000 employees has a clear advantage over the business with only ten.  For the big firm, regulatory compliance is only one-thousandth of its workload.  For the small firm, it’s a tenth.

Meanwhile, CHOI has had a reprieve, but its close call must certainly be a chilling incentive to other broadcasters to knuckle down to the CRTC’s wishes.




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February 20, 2005