OTTAWA – The CRTC declined to add an American sports channel to its list of eligible services on Tuesday citing genre protection, a decision that prompted dissenting opinions from two of its commissioners who said that the policy is past its prime.
Rogers Communications asked the Commission to add Fox Cable Networks-owned Fuel TV to the digital lists last June. In its application, it described the channel as “an English-language programming service that offers a range of action sports programming portraying the lifestyle and culture of non-mainstream action sports and the underlying social relationships and communities of interest of the individuals who participate in those sports”.
This prompted an intervention from independent broadcaster High Fidelity, which opposed the addition on the grounds that Fuel TV’s programming was somewhat competitive with that seen on its radX channel, contrary to the Commission’s policy on genre protection. Granting its entry to Canada would “significantly affecting radX’s ability to grow and prosper and to increase its contributions to the Canadian broadcasting system”, reads High Fidelity’s response. Rogers disagreed, noting in its reply that Fuel TV provides sports programming and radX does not.
But the Commission sided with High Fidelity, saying that an examination of the two services found that almost 20% of radX’s programming is composed of the six core sports that occupy more than 60% of Fuel TV’s programming schedule.
Despite the majority vote on the decision, CRTC Commissioners Timothy Denton and Michel Morin both disagreed. Commissioner Denton noted the disparity between the rules in telecommunications sector, which encourages competition, and those in broadcasting which seem to prevent competition. He said that “policies like ‘genre protection’ will not change unless more and more Commissioners refuse to go along with the policies of the past”.
“I see no merit in continuing what the Commission calls “genre protection”. At some point in time, on some issues, Commissioners have to depart from the consensus, the precedents, or the staff position – no matter how apparently reasonable – and cease to be compliant with what has gone before”, he wrote. “I have called for the need for a rethinking of the Broadcasting Act before, when we wisely decided not to try to apply the Act and its licensing regime to the Internet. I renew my plea that someone higher up in government heed my supplication.”
Commissioner Morin’s dissenting opinion took a similar tack.
“(T)he Commission is displaying an unjustified overcautiousness towards a new non-Canadian service that would have complemented the Canadian offering”, he wrote. “In my opinion, the decision not to add Fuel TV to the list of services eligible for digital distribution is inconsistent with the general philosophy of ‘genre deregulation’ that led the Commission, in 2008, to allow for competition between news and sports specialty services.”
Morin was also critical that the CRTC has never set thresholds for determining whether a Canadian or foreign service is “too” competitive with already approved services, and offered his own criteria in determining the merits of approving or denying a request for a foreign service.
