OTTAWA – The Canadian Media Production Association (CMPA) is seeking leave to appeal to quash a recent CRTC decision that did away with the Terms of Trade agreement the organization fought so hard for. The group has filed the leave application with the Federal Court of Appeal (FCA).
The March 12 portion of the Let’s Talk TV decision (Broadcasting Regulatory Policy CRTC 2015-86) made a number of significant changes to the Canadian broadcasting system, many of which were discussed at length during the two week public hearing. Terms of Trade was not one of them and the Commission’s decision to axe it seemed to come out of nowhere, says the producers’ group.
CMPA president and CEO Michael Hennessy said in a statement that the association had no choice but to appeal the decision.
“Regulatory enforcement of producer safeguards is the only way to ensure producers are able to negotiate fair deals with the media giants. They are critical for the health of the independent production sector and the thousands of creators and skilled workers it employs,” he argued.
In an interview with Cartt.ca, Hennessy added that the condition of licence regarding Terms of Trade must remain because it’s “the mechanism that actually enforces the commercial agreements. So without the mechanism there’s no form of redress.”
That’s the big issue for the CMPA. Without enforceable safeguards, independent producers don’t carry enough weight in their negotiations with the large vertically integrated broadcasters. There are safeguards throughout the Canadian broadcasting system to level the playing field with the big players whether that be consumers, independent broadcasters and distributors.
“All for the same reason that there’s an imbalance in bargaining power,” said Hennessy.
The CMPA leave to appeal is based on lack of procedural fairness, which essentially means that the Commission didn’t offer an opportunity for parties to make substantive comments on the issue.
“We’re really arguing in the simplest terms that there were 80 questions in the first notice, none of which were Terms of Trade and then 29 topics set out for the hearing, none of them Terms of Trade.” – Michael Hennessy, CMPA
“We’re really arguing in the simplest terms that there were 80 questions in the first notice, none of which were Terms of Trade and then 29 topics set out for the hearing, none of them Terms of Trade. The Commission didn’t ask us a single question about it at the hearing even though we had noted in our opening comments that we were pleased that the commission hadn’t put Terms of Trade on the table. They were silent at that point. So really that failure of notice and failure to discuss left us with no opportunity to ever provide any evidence or substantive submission,” said Hennessy.
His comments echo those he made to Cartt.ca last month where he raised the procedural fairness issue.
“They never asked us a question and then the next day they turned around and started talking about it with Rogers,” Hennessy said in March. “We are the signatory to the deal on behalf of the independent producers yet they only questioned the party that was complaining and never talked to the other signatory. From a procedural fairness perspective, it’s awful.”
Asked why the CMPA opted to seek leave to appeal to the FCA rather than appeal back to the CRTC, Hennessy said because the Commission was so definitive in its decision, the association felt it better to appeal to the FCA.
“We felt that there would be a much stronger case if we could get the court of appeal to rule of the procedural fairness … than what was back in the Commission’s ambit,” he said.
