By Greg O’Brien
THE PRIOR ITERATIONS OF our Broadcasting Act are carefully written, specific, documents.
The first, passed in 1968, was an Act meant to, among other things, “safeguard, enrich and strengthen the nation of Canada from sea to sea,” as quoted in the History of Canadian Broadcasting. That version of the Act also established the CRTC, empowering it with the responsibility to make sure the system stays under Canadian ownership and control.
American companies who had ownership positions in our broadcasters and then-nascent cable companies were forced to divest (down to a maximum of 20% ownership, but many left completely). This set off semi-regular spasms over the decades where owners posited aloud, or behind the scenes, they should be able to sell their companies to whomever they damn well pleased and foreign investment or ownership limits should be abolished because we could still make sure our laws force foreign owners to make and air Canadian content, if they wish to operate here.
Those who argue in favour of keeping our system Canadian-owned fear foreign control would mean Canadian content then wouldn’t get made at all and news bureaus in towns not named Toronto, Montreal and Vancouver would be closed. Why would suits in Hollywood or New York care if Canadians see or hear their own stories or if news in Nova Scotia was covered by local broadcasters, ask those who support the protections, then and now.
So, when the Act was last upgraded in 1991, the CRTC’s powers grew and section 3(1)(a) was made unambiguous: “The Canadian broadcasting system shall be effectively owned and controlled by Canadians,” it says.
Pretty straightforward.
So, it was curious Bill C-10, the Act to amend the Broadcasting Act, simply took that part out, especially since on page five of the original instructions to the Broadcast and Telecom Legislative Review panel, whose recommendations helped feed this bill, prohibited the panel from bringing forward any ideas to increase foreign ownership of Canadian broadcasters.
It seemed to all and sundry, upon the release of C-10, the feds had done an about-face and our broadcasters could finally be sold to outside interests.
This could be part of the reason our biggest broadcaster, Bell, has been so far silent on C-10 (why disturb something the company dearly wants) and why the next two largest (especially Corus, whose CEO has been doing a bit of tub-thumping in favour of the bill this week) want to see it passed post-haste.
Last Friday however, Heritage Minister Steven Guilbeault and department officials told MPs at the Standing Committee on Canadian Heritage they can rest assured Canadian broadcasters can’t be sold to foreigners because of a 1997 direction to the CRTC which stands to this day. That directive says non-Canadians may own up to 20% of a broadcaster directly and up to 33.33% of a holding company that owns a broadcaster.
Examples of companies operating under that directive that can be found in the CRTC ownership charts, which show ESPN owning 20% of TSN and RDS, for example. Discovery Communications and others also own similarly small chunks of certain Canadian specialty channels.
“Critics of Bill C-10, however, told us after the department officials’ appearance at committee last week the 1997 directive is actually a rather flimsy way to keep Canadian broadcasters in Canadian hands.”
Critics of Bill C-10, however, told us after the department officials’ appearance at committee last week the 1997 directive is actually a rather flimsy way to keep Canadian broadcasters in Canadian hands. For three reasons.
First, any government can change that directive, or any directive, on a whim. While Guilbeault insisted Friday his government won’t (and a new directive to the CRTC is on the way if/when the Act is adopted), nothing stands in the way of another government dumping it. Keeping the existing wording in the Act itself is a very much surer way of keeping Canadian media companies Canadian-owned, say proponents, because as we all surely know by now, changing legislation is pretty damn hard and takes a long damn time.
Second, shifting the responsibility to the CRTC to make new regulations insisting on Canadian ownership under a new Act which no longer explicitly says that may not stand up to legal challenges. One opponent of C-10 as it’s currently written pointed us to the Supreme Court’s 2012 ruling against the CRTC’s attempted fee-for-carriage (or value-for-signal) regime. The court struck down the attempt because allowing broadcasters to prohibit distribution of their signals this way or establishing such fees for over-the-air TV broadcast signals, was outside the Commission’s jurisdiction.
Essentially, since the 1991 Act doesn’t mention those things specifically, the Supreme Court ruled it beyond the Commission’s reach and disallowed the plan and with “the Canadian broadcasting system shall be effectively owned and controlled by Canadians” removed from the new Act via C-10, new regs from the CRTC trying to maintain Canadian ownership levels could face the same fate.
Third, the 1997 directive talks about ownership of broadcasting licences while C-10 would get rid of licences altogether in favour of registering industry players and setting new “conditions of service.”
We get it, though. The Department was tasked with bringing foreign players into “the system”, so there is little way section 3(1)(a) can stand as written since forcing Netflix and others to set up a wholly owned Canadian company or somehow forcing it into an investment of less than 33.34% of Crave or something, is ridiculous on the face of it.
The Independent Broadcasters Group (whose members include Channel Zero, Stingray, Ethnic Channels Group and others), which will again appear in front of the Standing Committee on Canadian Heritage on Friday after it was interrupted by House business last month, has offered the government its own re-wording of that portion of the Act so it says: “the Canadian broadcasting system should support Canadian ownership and control of broadcasting undertakings, including independent ownership, offering all manner of services and reflecting a diversity of voices.”
This wording, the IBG told the committee in its submission, recognizes international streamers are present in the system, but would also ensure “Canadian ownership of broadcasting undertakings is maintained as a broadcasting policy objective. Without this change, there is no provision for Canadian ownership and control of services or the need to maintain ownership diversity and a diversity of voices” in C-10.
The committee has yet to do its careful, clause-by-clause examination of the bill, which is likely to happen next month (after other players, including Bell Media, present evidence), but given many of the MPs’ public concerns over who owns our media, we expect a new 3(1)(a) to get very specific attention.
