CRTC dismisses complaints against Explora, Illico Club Unlimited over genre exclusivity violations

Genre exclusivity, one of those dinosaurs of the Canadian broadcasting system, was put to the test recently thanks to two complaints from companies that profit from this protection, and on Tuesday the CRTC rejected both complaints.


Basically, any specialty TV channel is prevented from competing directly with any channel that has genre protection as part of its licence. This is to ensure diversity in the specialty channel system by protecting services that have been broadcasting for decades and have high requirements for Canadian content and original programming.

The list of services with such genre exclusivity is relatively small compared to the number of channels available today. All were licensed in 2000 or before, because the CRTC has said it will no longer grant these types of licences (for now anyway, it plans to revisit this in 2015-16). They include the oldest and most popular specialty services: Discovery Channel, Bravo, Food Network, HGTV, Showcase, Space, Comedy Network, Teletoon, Weather Network, Vision TV and YTV, but many others too in English, French and other languages.

Most TV channels licensed since 2000 are called Category B (formerly Category 2) licences, which do not have genre protection, which means they can compete freely with each other (but not directly with the genre-exclusive Category A services).

Genre exclusivity doesn’t mean that two channels can’t air the same programs. If a program falls under two channels’ nature of service (say, it’s a sci-fi show for kids), then it can air on both. But it does mean that two channels can’t be about the same thing.

In many cases, genre exclusivity is enforced by licence limitations. The Comedy Network, for example, is limited in how much animated programming it can air to prevent it from competing with Teletoon. Most new channels are limited in how much of their schedule can be spent airing theatrical films, live sporting events or music videos.

Specialty channels are not considered to be directly competing if they serve a niche. For example, CMT doesn’t compete with MuchMusic because it (theoretically) airs country music videos and country-themed programming. Retro programming channels like Comedy Gold or MovieTime are allowed because their licences state that they can only air programming that’s at least a certain number of years old.

But the system has a bunch of flaws. For one thing, many channels that have genre exclusivity have been moving away from the formats they were licensed for. MuchMusic has been pushing to reduce the number of hours it devotes to music videos. Discovery Channel’s commitment to science, nature and technology can certainly be questioned these days as reality shows start filling up its schedule. What is now called Twist TV was licensed as a health channel, and now airs Bridezillas and Supernanny. And don’t get me started on OWN (which, as far as I can tell, has completely ignored a court order from the CRTC requiring it to air educational programming).

The CRTC is slowly starting to deal with this issue. First was the moratorium on new channels of this protected type. Then came the removal of exclusivity for mainstream news and sports channels, which created a new category (Category C) of channels that have common licence conditions and are designed to be directly competitive. The commission recently proposed putting mainstream music channels (like MuchMusic and MusiquePlus) into this category as well, though a decision has not been reached yet.

The commission’s three-year plan has it reviewing genre protection in 2014-15, and then reviewing the Category A system the following year to see if it should remove the moratorium and licence new services of that type.

In the meantime, the CRTC has to enforce this, particularly when there are complaints, which brings us to the news of the day.

The news

The CRTC released two decisions on Tuesday:

The first dismissed a complaint by Serdy Media, which owns Canal Évasion. Serdy had complained that Radio-Canada’s new service Explora violated Évasion’s genre protection by broadcasting “adventure”-themed programming, while Explora’s licence requires it to broadcast programs related to “scientific discoveries, the environment, nature and human health.” Serdy took specific issue with the fact that Explora marketed its programming in part as adventure. The CRTC found that because the programs in question could also be categorized as environment or nature programming, Explora was still within its licence. The commission dismissed the complaint, but warned Radio-Canada not to use “adventure” in marketing the channel.

The second decision dismissed a complaint by what was then still Astral Media, which owned pay TV movie service Super Écran, against Videotron’s Illico Club Unlimited. Videotron launched the Netflix-like service earlier this year, and though online streaming services are not regulated by the CRTC, because Illico’s programming could be accessed through Videotron’s video on demand system, which is regulated by the CRTC, Astral complained that it was essentially a VOD service and had to respect genre protection. The CRTC essentially ruled that because Illico Club Unlimited contains films that are past the pay TV window, and doesn’t include movies currently airing on Super Écran, it’s not directly competitive.

Both decisions limit the reach of genre protection, and you have to wonder if this isn’t a way of relaxing the rules a bit to allow for more competition.

Unfortunately we’re still going to have to wait another year before this system gets the full airing out it deserves, and these entertainment-focused channels with profit margins in excess of 30% are forced to justify their protection from direct competition.

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