The Canadian version of the Oprah Winfrey Network is not one of the CRTC’s favourite things right now.

On Friday, the commission issued what’s called a mandatory order — a kind of “do this or else” note that has the backing of the federal court behind it — requiring the channel to abide by the terms of its licence that it has tried its best to work around since its days as CLT.

OWN, formerly VIVA, formerly CLT, was originally licenced as Canadian Learning Television in 1996 as a channel that would “provide formal and informal educational programs on a wide range of topics.” (Even then, there were concerns — Commissioner Claude Sylvestre objected because it stepped all over provincial jurisdiction over education.) Its licence has been slightly watered down since then, but it remains at its core a channel focused on education.

Despite this, its programming has been largely of the mainstream entertainment variety. Under CLT, it aired episodes of The West Wing preceded by some comment by professors in a half-hearted attempt to justify the educational value. When it rebranded as VIVA, a network for “boomer women”, it just about laughed in the face of its nature of service.

One needs only look at its current list of “accredited” educational programs to see how it’s twisted things, showing general interest shows and getting small colleges to have courses where they critique camera angles or other silliness.

A look at its finances shows the move to OWN has been successful. Profit has gone up significantly, and the network now has a profit margin of 40% (that’s actually down from almost 50% in 2009), making $10 million a year ($8.5 million after interest and adjustments) for Corus.

Repeated non-compliance

This isn’t the first time that the channel has been found in non-compliance in this way. In 2011, the CRTC found its justification for calling many programs educational to be far too much of a stretch. In issuing a renewal of licence for it and other channels owned by Corus, it said:

… eight programs are associated with a single script writing course, and two programs are associated with three different courses in cinematography, story development and video production techniques. The Commission considers that the service’s curriculum of educational programs does not achieve the variety of educational programming described in the nature of service definition. The Commission further notes that most of the other programs listed explore the broad themes of food and nutrition, fitness, beauty and well-being, family and relationships, as well as design. Those programs are not inherently educational, but rather conform more closely to the genre of lifestyle programming. In general, the Commission finds that the OWN service is focused on “enhancement programming” that does not provide basic adult education, job development skills or professional development, as contemplated by the nature of service definition. As such, the service is only fulfilling part of its mandate.

The CRTC ordered Corus to comply with the network’s licence and said it would monitor the situation.

A year later, it was clear Corus was continuing to not comply, and the CRTC held a hearing to ask why.

Corus responded by asking the CRTC to convert the channel from Category A (a status that gives special rights in terms of carriage and which is protected from direct competitors, in exchange for higher Canadian content requirements) to Category B (which has no rights to carriage and can directly compete with other channels of the same category), but asked that it be conditional on Shaw getting an exception to the rules allowing it to keep the channel in its cable and satellite TV lineup. (Because Shaw and Corus are both owned by the Shaw family, the CRTC considers them related companies, and rules require a company carrying a related Category B channel to carry similar channels owned by competitors.)

The CRTC said no, that it won’t accept a change of licence that’s contingent on what would be a separate application. Corus asked again, this time without the demand for an exception, and asked that it be allowed to make its broadcast day 24 hours instead of 18 to increase programming flexibility.

On Friday, the CRTC said no to both of those applications. As a policy, it won’t accept applications to change a licence in order to rectify the fact that a broadcaster isn’t complying with it. (It used that same policy in its decision Thursday not to accept a change to the licence of Montreal’s CKLX-FM).

Corus vigorously defended itself at a public hearing held in December (you can read the transcript here), saying it was acting in good faith and trying to comply with its licence obligations, but the CRTC saw through that. No matter what came out of Corus’s mouth (even an expression of confusion over what constitutes an educational program), the fact remained that what was licensed as an educational channel had been turned into a women’s lifestyle channel.

Since all this was brought up in 2011 and Corus did next to nothing about it, the CRTC has taken the next step, issuing a series of mandatory orders and requiring monthly reports about their progress. The next step, likely, would be non-renewal, suspension or revocation of the licence. Needless to say, that would not be to Corus’s liking.

Corus’s orders

The mandatory orders issued Friday require Corus to:

• Ensure OWN complies at all times with its nature of service as an educational channel
• Ensure that no more than two programs airing on OWN are tied to any individual course
• Properly categorize programming on OWN (so that, for example, drama programming isn’t categorized as educational programming simply because a course is using it as a teaching tool)
• Re-accredit programs each year
• Have a “refresh rate” (i.e. program turnover) of 50% each year
• Cover no less than six different genres of programming each year
• File annual reports on the programming it airs, including which programs are accredited as educational
• File monthly reports to ensure it is in compliance with the condition of licence that 55% of its programming must be formal educational or pre-school programs, including explaining the learning objectives of each educational program
• End the practice of presenting scripted comedy or drama programs or feature films with brief introductions and classifying that as educational
• File an application to limit to 10% the overlap in programming between OWN and W Network (both owned by Corus)

The commission also provided these guidelines for establishing a program as an educational one:

• The learning objectives of the program are clear to the average viewer watching at home.
• The primary objective of the program must be to educate viewers; however the program can be presented in an entertaining manner. In other words, it is the content and subject of the program that renders a program educational, not the manner in which it is being presented.
• The focus of the program should deal with a field of study that could be found in an educational institution or other formal training program (for example, mathematics, finance, language study, history, geography, religious studies, art history, cooking theory and skilled trades).
• While the programs can be tied to an educational institution or tied to established curricula, this is not a requirement.
• The program could be used to improve the viewer’s technical or professional qualifications, develop their abilities or enrich their knowledge.

The significance of the mandatory order, which sounds like just another request on the face of it, is that it is filed with the federal court, and violation of a mandatory order from the CRTC could lead to contempt of court charges, which could mean fines or other legal consequences for Corus. In other words, this is serious.

So what does this mean for OWN?

OWN is about to go under some dramatic changes. The biggest one concerns that 55% of programming that must be of a formal educational nature. Episodes of Oprah or its spinoffs don’t really qualify as that. So Corus will need to stretch even more to try to justify the educational nature of the lifestyle programming it airs on OWN.

The decision also makes clear that OWN is not allowed to broadcast comedy, drama or feature films. At least not directly. OWN can present such scripted programming in an educational manner, but that requires frequent interjections, and has to be much more involved than what’s being done now, including at the very least an introduction, an intermission and an end.

We’ll see how Corus handles this. Will it try to comply with its licence by having professors comment on episodes of the Oprah Winfrey Show? Will it limit lifestyle programming to primetime or afternoons and show educational programming the rest of the time? Or will it just abandon the whole thing, turn it back into CLT and air Oprah programs on W while it seeks a new licence for OWN Canada without the educational programming restrictions?

Any way it goes, there will likely be Oprah fans in Canada who will be annoyed that something dramatic has happened to their OWN.

Further reading:

• Policy wonk Kelly Lynne Ashton on the fantastic arguments Corus used to justify OWN’s programming, including that the movie Fried Green Tomatoes was tied to a course teaching people how to fry green tomatoes (no, seriously, it’s at paragraph 699 here)
• Coverage from Canada.com’s Marc Weisblott, The Hollywood Reporter’s Etan Vlessing and Bloomberg’s Greg Quinn
• A story from the Globe’s Steve Ladurantaye with a brief statement from Corus saying they will abide by the CRTC’s decision