What’s in the proposed new Broadcasting Act

The federal government has tabled legislation to rewrite the Broadcasting Act. Bill C-10 has a long list of amendments that change wording in the act and it’s a bit confusing to get through. So here’s a list of what’s actually in the bill (based on my Twitter thread from yesterday):

  • Creates a new definition of “online undertaking” meaning “an undertaking for the transmission or retransmission of programs over the Internet for reception by the public by means of broadcasting receiving apparatus” — in other words, an online broadcaster, using the same vague wording as for traditional broadcasters but presumably including services like Netflix, Amazon Prime Video and YouTube. Such “undertakings” would not need to be licensed to operate, nor would they pay fees to the CRTC, but the commission can regulate them, impose Canadian content or funding obligations, and demand information including confidential financial information.
  • A specific exemption for content posted to a “social media service” that excludes such content from the definition of broadcaster for the purpose of the act.
  • Gives the CRTC the power to impose fines on broadcasters. Currently, the commission cannot impose “administrative monetary penalties” on broadcasters like they can on things like spammers. They’ve gotten around this by imposing additional financial contributions as conditions of licence when licenses are renewed. With this change it could impose fines directly, up to $25,000 for a first offence or $50,000 for subsequent ones, for a specific set of reasons.
  • Explicitly state that the broadcasting system serves all Canadians, “including Canadians from racialized communities and Canadians of diverse ethnocultural backgrounds, socio-economic statuses, abilities and disabilities, sexual orientations, gender identities and expressions, and ages.” The CRTC already respects these values, so it probably won’t change anything, but specific reference to things like sexual orientations could be cited in discussions of setting new policies or court challenges to CRTC decisions.
  • Explicitly mention news. Right now the act only mentions obligations to news for the CBC specifically. The new act would say that programming provided by the entire system should as a matter of policy “include programs produced by Canadians that cover news and current events — from the local and regional to the international — and that reflect the viewpoints of Canadians, including the viewpoints of Indigenous persons and of Canadians from racialized communities and diverse ethnocultural backgrounds.”
  • Eliminate the seven-year maximum length of licenses. The CRTC has already started reducing licence terms, generally five years now for TV licenses. Under the new act, they could set unlimited terms but also wouldn’t have to wait five years to make changes to licenses.
  • Codifies how the CRTC deals with confidential information, including explicitly allowing it to share said information with Statistics Canada and the Competition Bureau.
  • Give the government more time to overturn CRTC decisions related to awarding, renewing or amending licences or referring them back to the commission for reconsideration. The 90-day deadline would now be 180 days.

And some minor changes:

  • Change the procedure for orders from the government. Instead of being referred to a House of Commons committee with a 40-day notice, the orders would need to be published and have a 30-day notice.
  • Moves article 9(1)h of the act, which gives the CRTC the power to require distributors carry certain programming, to a new section, requiring several amendments to other laws that reference it.

If that seems like it’s not that much and very unspecific, that’s true. The act only gives general policies and creates legal powers. A lot of the more interesting stuff related to policy will be done through a policy direction to the CRTC, which the minister says will be done once the amendments to the act are passed. There are also other bills to come including amendments to the Copyright Act.

Then, the job of interpreting the new policy and actually setting new regulations will be up to the CRTC.

Among the things we don’t find in this bill:

  • Changes to copyright law, or anything that would change how Google and Facebook deal with content
  • A better definition of broadcasting that would make it clear what is regulated and what is not
  • A definition of social media that would let us answer if, for example, YouTube is a social media platform or if it’s both social media and an online broadcaster depending on content
  • Anything new regulating social media
  • Any policy direction to the CRTC
  • Any substantial changes to how traditional television and radio is regulated
  • Any change to the CBC’s structure or mandate
  • Any consumer protection measures
  • Any measures related to sales taxes for online broadcasters

Compared to what was recommended in the Broadcasting and Telecommunications Legislative Review panel report in January, it’s not quite as bold, but there are several elements in there, including the most important one giving the CRTC the power to regulate online media (though the commission would have argued that it already had that power).

Now we’ll see what terms the CRTC set for Netflix et al, and if they’ll agree to them.

10 thoughts on “What’s in the proposed new Broadcasting Act

  1. Dilbert

    First question is ” broadcasting receiving apparatus”. Is a computer such a device, is an app such a device, or is this limited strictly to set top boxes?

    Second question is how they will define broadcasting. Netflix, Youtube, and so on are all on demand narrow casters. One user, one stream. Their transmissions are never broadcast but prepared and delivered individually. You might be able to suggest that a shared live stream (such as Twitch or Facebook likve) might be a broadcast, but most everything else is a user driven on demand model.

    They will also need to more clearly define where the lines are drawn. As an example, if you have a blog (such as this one) and have a video on it, are you a broadcaster?

    None of this appears to be a move forward
    The real question is really if the government and CRTC feel they should be regulating online content. Doing so would be a very backwards move in my opinion, an attempt to appease Bell, Rogers, and friends by forcing the free flowing internet to suddenly kowtow to Canadian content rules?

    Will porn hub have to have 35% Canadians having sex, and limit viewers to having to consume 35% of Canadian xxx rated content? After all, the adult video companies are often distributing way more video material than any of the big players.

    The whole thing seems to scream out as a move to satisfy the big media players. The news section is the most interesting. It fails to (and in fact seems to way to get away from) the idea of local news on a per market basis. Rather, it seems to suggest an embrace of the Global TV model of nationalized production with local inserts.

    They would be much better off to mandate hours of news programming produced and distributed locally for radio and television. Local stations need to be able to stand on their own two feet and produce their own programming and make their own programming decisions, otherwise they are just network rebroadcasters. it’s almost exactly the case today as most CTV stations across Canada run the same programming at the same times on the same schedule nation wide.

    Reply
    1. Fagstein Post author

      First question is ” broadcasting receiving apparatus”. Is a computer such a device, is an app such a device, or is this limited strictly to set top boxes?

      This may become an issue to be debated in court some day, but it appears the CRTC is treating computers as apparatuses for the purpose of this law.

      Second question is how they will define broadcasting. Netflix, Youtube, and so on are all on demand narrow casters. One user, one stream.

      Broadcasting includes on-demand programming. That has been the case for at least two decades now. Trying to argue in court that it should be excluded will probably not work out well.

      As an example, if you have a blog (such as this one) and have a video on it, are you a broadcaster?

      It’s a good question, and the answer is probably yes (just like I’m also a publisher), but it’s also probably moot. The CRTC is unlikely to set obligations for small broadcasters and will almost certainly exempt them from licensing and most regulations, just as they do small broadcasters. The social media exemption makes this intention pretty clear.

      The real question is really if the government and CRTC feel they should be regulating online content.

      They’ve clearly said that they do.

      Will porn hub have to have 35% Canadians having sex, and limit viewers to having to consume 35% of Canadian xxx rated content?

      No. The CRTC has moved away from exhibition-related content regulation and more toward funding-based quotas. So more likely porn sites making more than a certain threshold will be required to spend, say, five per cent of their Canadian sales on Canadian content.

      The news section is the most interesting. It fails to (and in fact seems to way to get away from) the idea of local news on a per market basis.

      The Broadcasting Act is not going to get that specific. Regulations are up to the CRTC. But the new act would clearly say that local news is a priority.

      They would be much better off to mandate hours of news programming produced and distributed locally for radio and television.

      That’s not going to be specified in legislation. The CRTC has a policy on that, but it has exceptions. You can’t expect a TV station serving a community of just a few thousand people to produce an hour of local news every day, for example. So there are exceptions made, like allowing networks to have regional stations in the Maritimes or northern Ontario. You can’t account for every situation in legislation, which is why this stuff is left up to the commission.

      Reply
      1. Dilbert

        “The Broadcasting Act is not going to get that specific. Regulations are up to the CRTC. But the new act would clearly say that local news is a priority.”

        This single line sums up the problem nicely. Instead of defining the box tightly and giving the CRTC responsibility for implementation and enforcement, they instead say “we have a thing like a box sort of thing and the CRTC will tell you what size, shape, and color the box shaped item may be”.

        The result? The CRTC ends up both making regulation and enforcing it, and does so often to the detriment of citizens and instead to the benefit of perpetuation of the failing structures that they created. The entire system is based on an idea that as long as the CRTC gets to further it’s self defined goals within the huge and wobbly box defined, they can do what they want.

        What has that done?

        The most significant is a form of regulatory capture by the big media players. It hasn’t been done by bribing the commissioners or paying off crooked politicians to change the rules, instead it’s been by giving the commission what it wants to further it’s wonky goals, and in return the big media players have ended up in a position of control. The biggest media (Rogers, Telus, Bell, Videotron) have ended up in the position of being broadcasters, distributors, and controlling the gateway to the distribution future (IP technology). Their profits and control of the situation exists only as long as they continue to perpetuate the structures and methodologies from 30 plus years ago.

        Technology allows you to watch any content, from any where, at any time. Netflix, Amazon, Spotify, and many other have proven that the technology not only exists, but is improving every day to make it as transparent as turning on the radio or clicking the remote on your TV. Content from all over the world is usually about three mouse clicks away. It’s no longer a question of maybe, it’s the reality that we deal with today.

        There is no restriction, this is a free flow in all directions. So if Canadian content is good (and there is plenty that is), it can flow all over the world too. Services like Youtube, Twitch, and many others have made it so that you can produce content and distribute it world wide.

        Moreover, technology has made it so the cost of producing this content is as close to nothing as you can get. You can literally open up your laptop or turn on your desk cam, and you can record or stream immediately. You can buy a 4k camera like a GoPro for a couple of hundred dollars. Apps to control streaming and recording on your desktop are literally FREE. Content has been democratized. Anyone can do it.

        People will gladly pay for good content. They will pay for Netflix, they will pay for streaming services, and they will even pay for their favorite gaming streamer. Give them a quality product, no matter where it is created, and they will pay for it.

        The big Canadian media players fear this. Netflix is already disruptive to their self-dealing premium movie channels and pay per view options. Direct streaming is slowly eating away at the gatekeeper model that has them selling PPV tickets and restricting access. Their position as middle man isn’t needed as it was before.

        Oh but wait, their position as middle man is needed for exactly ONE reason: It gives the CRTC a point in the process to tax and redistribute wealth based on their 30 year old structures. They can collect money from cable companies, and redirect that. They can limit access to that distribution method and impose fees or “contributions to Canadian content” in order to have access. The CRTC wants to perpetuate the structures to perpetuate themselves, and the big media players want to do it because it’s much more profitable for them to do it that way.

        The broadcast act should be written narrowly to clearly define what is and what is not acceptable. Hard limits should be placed on ownership, and moves should be made to separate the ownership of production and distribution. Every broadcast license should require local control, local operation, and local production of news and other content. Each licensee should be able to stand on it’s own two feet as it’s own operation, or the license should be granted to others who can.

        Ownership needs to be broken down into three separate categories: Broadcaster, Distributor, and communications / networking. You can only play on one side. If you do phone and internet, you cannot do cable, own radio or TV stations, or any of the other things in the process. If you do distribution, you cannot own a phone company or broadcast stations (including cable channels). If you are a broadcaster (and for ease of understanding, I include internet based services and such) then you are not allowed to own any of the other pieces.

        I could go on and on. Re-doing the broadcast rules gives the government (and the people, natch) the chance to update the rules and regulations based on the situation on the ground today with an eye to the future. It should not be done to perpetuate 30 year old policies that no longer make sense in a world where media knows no boundries.

        Reply
        1. Fagstein Post author

          If the government wants to get specific about individual regulations, it can do so via orders in council. Amending the Broadcasting Act to, say, set how many hours a week of local news a TV station should air would be problematic, especially because it doesn’t really allow for any exceptions to the policy.

          The CRTC wants to perpetuate the structures to perpetuate themselves, and the big media players want to do it because it’s much more profitable for them to do it that way.

          For now it is, but that’s changing. Bell has made Crave and TSN available without a regulated TV subscription. Corus has been pushing Stack TV through Amazon Prime Channels. When it no longer has that critical mass of subscribers, we could see the cable/satellite TV model collapse. And everyone is well aware that’s in the future, though no one really knows how far.

          The broadcast act should be written narrowly to clearly define what is and what is not acceptable. Hard limits should be placed on ownership, and moves should be made to separate the ownership of production and distribution. Every broadcast license should require local control, local operation, and local production of news and other content. Each licensee should be able to stand on it’s own two feet as it’s own operation, or the license should be granted to others who can.

          You seem to be advocating for micromanaging regulations in the Broadcasting Act. That can create problems. How do you define “local”, for example? A city? A town? A province? Can there still be regional broadcasters? What if a business model only works as a regional network covering small communities? Does this mean TVO and Télé-Québec would have to shut down since their stations are not locally run and can’t operate independently?

          Reply
          1. Dilbert

            Bottom up…

            “Does this mean TVO and Télé-Québec would have to shut down since their stations are not locally run and can’t operate independently?”

            TVO or TQ are working on a “local repeater” model for the most part (with exceptions). That means that each transmitter is just that, sending a signal and not operating as an independent operation. Much of their networks were built and licensed in that manner. It’s one of the many reasons why you don’t have multiple TQ or TVO channels on cable / sat / IP TV – they are all the same. That is a very different animal easily codified in law.

            “When it no longer has that critical mass of subscribers, we could see the cable/satellite TV model collapse. ”

            With that model currently propping up Bell’s billion dollar profits, it’s unlikely that it will change any time soon. Crave and TSN streaming seem most to be making very small bets on a potential future rather than a great commitment. Remember, most legacy players have been loath to give out unlimited data plans until recently, which has directly limited the appeal of online or streaming products. Canada catching up from being nearly a decade behind in internet technology, in no small part because the legacy players had no direct motivation to move forward in what is a non-competitive marketplace.

            “especially because it doesn’t really allow for any exceptions to the policy.”

            One of the problems of exceptions is that they become the rule. The lack of true hard and fast ownership concentration rules have allowed the CRTC to horse trade the system away in return for money for their pet can-con projects. It’s how you end up with Bell owning the majority of Montreal anglo radio, TV, phone, cellular, internet, and TV distribution services. Each little part along the way has happened with a bit of horse trading, some money for Canadian content, and little or no concern for the people working in those industries affected by consolidation.

            Most importantly, it’s not as much about regulating the industry as much as it is about roping in the CRTC. The broadcasting act needs to narrowly define the desires of the government (and thus the people) when it comes to this limited resource, and the CRTC needs to be significantly limited in it’s prerogative to grant endless exceptions to those regulations. Significant changes, such as exceeding ownership limits should require parliament to act to pass amendments to the law, and those changes should apply evenly to everyone, not to the exceptional case. It should be a matter of public policy and direct intentions of the people. An agency that has been subject to 30 years of regulator capture should not be in the position to tell the public what it wants, it should be the other way around.

            Reply
            1. Fagstein Post author

              TVO or TQ are working on a “local repeater” model for the most part (with exceptions).

              So networks of stations with identical content are OK if they’re licensed that way by the CRTC? I’m failing to see the substantive difference here between this and, say, Global’s Atlantic stations or City Saskatchewan or CTV Northern Ontario.

              It’s how you end up with Bell owning the majority of Montreal anglo radio, TV, phone, cellular, internet, and TV distribution services.

              To be clear, besides Montreal anglo (commercial) radio, Bell owns a majority of none of these services, either in Montreal or nationwide.

              Reply
  2. Walter Dnes

    Let’s be very blunt about the purpose of this proposed act; it’s designed to knock out the vast majority on non-Canadian streaming internet services “off the air” in Canada, because the-powers-that-be realize that Canadians simply aren’t interested in the pathetic drek that passes as “Can Con”. And “The Great Firewall of Canada” is the only way forward to their objective.

    Supporters of the act will claim that it’s about “making foreign streaming services pay their fair share”. That’s a baldfaced lie. I would believe that claim if the act…

    *) slapped on a “Netflix Tax”
    *) threw the proceeds into the Canadian Media Fund, or wherever
    *) let Can Con producers use the money to play in their their sandbox, and crank out more drek that Canadians won’t watch
    *) leave it at that, and It would be a win-win. Even more Can Con producers/directors/actors would be (un)gainfully employed cranking out drek almost nobody watches. And it wouldn’t be shoved in people’s faces

    Instead *EVERY* streaming service would be required to carry Indigenous and “racialized” content. According to https://en.wikipedia.org/wiki/9(1)(h)_order#Mandatory_carriage_(must-carry) APTN gets 31 cents per month subsidy per Canadian BDU subscriber. That’s approximately $40 MILLION per year. CBC has its own taxpayer-funded budget, too. If the two of them can’t make enough indigenous programming, they need to be subjected to a deep external audit.

    You want “racialized” TV? Try BET ( Black Entertainment Television https://en.wikipedia.org/wiki/BET ). If that’s “too American” for you, try OMNI TV. Or maybe earmark some of the “Netflix Tax” in the Canadian Media Fund to do whatever.

    Here’s the probable plan. Foreign specialty and entertainment streams will be denied a “Canadian Internet Licence” because they don’t meet all the per-snickety conditions. Meanwhile, Canadian services will be “granted exemptions”, just because. What else…

    * One day, you’ll try to play a Youtube video…

    * The DNS request for youtube.com will be intercepted and re-directed to youtube.ca

    * the actual video will be preceded by a Canadian Tire commercial

    * instead of the 1080P high-res original youtube.com video, you’ll see a brutally recompressed, grainy, macro-blocky, 360P version with a “Crave TV” logo obscuring the bottom right-hand corner

    * the first and last 30 seconds of the video will be missing due to being overwritten with promos for upcoming Crave TV programs

    Reply
    1. Fagstein Post author

      it’s designed to knock out the vast majority on non-Canadian streaming internet services “off the air” in Canada, because the-powers-that-be realize that Canadians simply aren’t interested in the pathetic drek that passes as “Can Con”.

      There’s no evidence of either of those things. There is no Canadian ownership requirement for online media and such a requirement would be very unpopular with consumers. As for CanCon, you might be shocked to learn that the top-rated new series this fall is Canadian and two Canadian drama series have been picked up by NBC. Oh, also there was what happened at the Emmys.

      Supporters of the act will claim that it’s about “making foreign streaming services pay their fair share”. That’s a baldfaced lie. I would believe that claim if the act…

      *) slapped on a “Netflix Tax”
      *) threw the proceeds into the Canadian Media Fund, or wherever
      *) let Can Con producers use the money to play in their their sandbox, and crank out more drek that Canadians won’t watch
      *) leave it at that, and It would be a win-win. Even more Can Con producers/directors/actors would be (un)gainfully employed cranking out drek almost nobody watches. And it wouldn’t be shoved in people’s faces

      That’s essentially what they’re doing, though it depends on how you define a “Netflix tax”. The CRTC can impose spending requirements on Netflix and other services, including contributions to the CMF. A sales tax on Netflix, which will probably also come, would be part of a different law.

      Instead *EVERY* streaming service would be required to carry Indigenous and “racialized” content.

      There is nothing in the law that would suggest this. And it wouldn’t make much sense, either. No Canadian broadcaster besides APTN (and maybe CBC) has this obligation. There are credits to encourage traditional broadcasters to use content from Indigenous creators and official language minority communities, but no mandate.

      Meanwhile, Canadian services will be “granted exemptions”, just because. What else

      No one has suggested this. The entire point of the legislative changes is to level the playing field. Canadian streaming services are already subject to various laws including sales taxes.

      * One day, you’ll try to play a Youtube video…

      * The DNS request for youtube.com will be intercepted and re-directed to youtube.ca

      * the actual video will be preceded by a Canadian Tire commercial

      * instead of the 1080P high-res original youtube.com video, you’ll see a brutally recompressed, grainy, macro-blocky, 360P version with a “Crave TV” logo obscuring the bottom right-hand corner

      * the first and last 30 seconds of the video will be missing due to being overwritten with promos for upcoming Crave TV programs

      YouTube already redirects you to its Canadian site (you can see “CA” in the logo), and serves localized advertising. The other two points are technical issues that I assume are based on dated stereotypes of simultaneous substitution that don’t apply online.

      Reply
  3. NaBUru38

    “the commission can impose Canadian content or funding obligations”

    So YouTube, Dailymotion, Vimeo, Twitch and Wikimedia Commons (which have videos from around the world) would be required to have a Canadian quota? If it’s 10%, would they have to ban some of their set of videos?

    Reply
    1. Fagstein Post author

      So YouTube, Dailymotion, Vimeo, Twitch and Wikimedia Commons (which have videos from around the world) would be required to have a Canadian quota? If it’s 10%, would they have to ban some of their set of videos?

      No. They might be required to spend a certain percentage of their Canadian revenues on Canadian content, or modify their recommendation algorithms to prioritize Canadian content (though that’s a tricky one and would probably be handled carefully).

      Reply

Leave a Reply

Your email address will not be published.