COMMENTARY: Double, secret confidentiality

OTT players were granted a new level of confidentiality, but to what end?

SO, DID THE GLOBAL digital media powers respond to the CRTC’s request for their data by the March 2nd deadline? We have no idea.

Last month, in order to help inform the report on the audio/visual content consumption patterns of Canadians which the CRTC is preparing for the federal government, a range of companies were asked to provide competitively sensitive information by the Regulator. Besides some of the usual Canadian suspects, Amazon, Apple, Facebook, Google, Netflix and Spotify were asked for:

However, the confidentiality promised by the CRTC in its letters to the companies sent February 2nd was so total that no one will tell us even if the U.S. companies responded. Not the Commission, not the companies themselves, save one.

Normally during the Commission’s public proceedings, all submissions are posted publicly on its website and if there are any commercially sensitive numbers or confidential statements included, the companies prepare reacted versions for the public, as long as the CRTC agrees any such information should be confidential. If the CRTC opposes a request for such confidentiality, the filer is given the chance to withdraw the data prior to posting.

However, for this particular data request, the Regulator went a step further.

As it said in the letters to the companies: “We anticipate that you may have concerns arising from the commercially sensitive nature of the information we are requesting… The Commission is varying its Rules of Procedure with respect to confidentiality and is making the determinations that follow.

“Given the type of information being requested and the distinct nature of this proceeding, the Commission is designating this information as confidential as it is sensitive financial or commercial information that is consistently treated in a confidential manner by the person who submitted it. Accordingly, the Commission will not disclose or require the disclosure of the information you submit and you will not be required to prepare or file an abridged version for the record. This decision of the Commission is final and conclusive.”

(This is a far different approach than what happened in 2014 when Netflix and Google, spooked by worries their data would not be properly kept confidential, refused then CRTC chair Jean-Pierre Blais’s request for numbers. In retaliation, they were stricken from the official record of the Let’s Talk TV process.)

The deadline to respond to the Commission’s letter was March 2, 2018 so this week we asked the CRTC, as well as Amazon, Apple, Facebook, Google, Netflix and Spotify whether or not the companies responded and if so, did they provide numbers to the Regulator, or not. We found nothing on the Commission’s web site beyond the submissions we already analyzed mid-February which included input from Facebook and the like.

(For what it’s worth, we’ve been told the Canadian companies did respond to the February 2nd letter with the data requested for OTT services, but that they can’t do any better than estimate how many hours Canadians spend with Canadian content because OTT is unregulated, so it’s not something anyone tracks.)

However, we haven’t heard back from Amazon, Apple or Spotify. Netflix and Google both responded to us to say they would not even comment on whether they wrote back to the Commission. The CRTC told us through a spokesperson “we do not comment nor is it our practice to comment on which parties decide to participate in our proceedings or the manner in which they choose to do so. We simply post to our website all publicly available information.”

Only Facebook gave us an answer, telling us it didn’t reply to the CRTC’s letter because the company doesn’t make or sell content here nor does it provide an online audio or video programming service in Canada.

So, one of three things has happened. The other unregulated entities either ignored the CRTC, told it “no thanks”, or they actually did provide some numbers.

What if the CRTC does now know all of that granular data from Netflix et al? Given the strict promise of confidentiality, how does it then prepare a comprehensive public report for the federal government on all the ways we Canadians consume content without violating its guarantees to the companies?

As well, if it does now have all that data, that simply has to affect future decisions. For example, if a Bell Media-Corus merger were proposed (as has been speculated), the Commission will know in detail the true size of the overall content market and consumption patterns in Canada – and that would have to affect decisions being made on the regulated side of the market. The CRTC can’t un-know this new data – if it has any of it. How could it then not be considered when decisions are being made?

Yes, the regulated side is the regulated side, with all of its restrictions as well as serious benefits. On the unregulated side, Netflix is in 6.1 million Canadian households, 1.2 million Canadians subscribe to Spotify, Amazon Prime Video is accessible in 1.8 million Canadian households (it’s free to Amazon Prime members of which about half are active monthly users), and Apple Music, Google Play Music and a few small players comprise about another 1.2 million paid music households. These are all estimates from Solutions Research Group based on its quarterly tracking (please contact them for more on its research). 

That’s a lot of time, attention – and money – leaving the country. Does the CRTC know exactly how much, or was it told “no”, or was it ignored? Whatever the answers to those questions, what will this federal government do with what it now knows?

Has this all been thought through?

Kudos, questions or comments? Leave those below or email us in confidence at editorial@cartt.ca.

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