By Denis Carmel
OTTAWA – The CRTC’s renewal of the CBC/SRC’s licences on June 22, was met with dissenting voices within the Commission where the decision was approved by three commissioners over two dissents, as well as outside voices who have issues with some segments of the decision.
Several groups have now filed petitions to Cabinet to have the decision set aside or referred back to the CRTC, including Public Interest Advocacy Centre (PIAC) and the National Pensioners Federation (NPF), the Canadian Association of Broadcasters (CAB), FRIENDS, l’Association québécoise de la production médiatique (AQPM) and the Canadian Media Producers Association (CMPA), whose petition was supported by the Black Screen Office, the Alberta Media Production Industries Association, the Documentary Organization of Canada, FilmOntario, On Screen Manitoba, the Saskatchewan Media Production Industry Association, and Screen Nova Scotia.
PIAC/NPF
Consumer advocacy organizations PIAC/NPF argue the CRTC giving the Corporation the flexibility to transfer its programming requirements to online platforms creates access and affordability issues.
“We submit that in ignoring these access and affordability issues for seniors, the CRTC has derogated from the achievement of the objectives of the broadcasting policy of Canada, in particular, subs. 3(1)(t)(ii), in not achieving affordability of BDU services for all Canadians, by inviting the CBC/SRC to abandon proven, functioning linear and OTA TV services used by millions of Canadians daily with no transition plan and compelling reason for such abandonment,” their petition reads.
“In effect, CRTC has set the CBC/SRC a trap, an attractive nuisance, a seduction, to move all local programming (including local news) resources from linear and OTA TV to the uncharted waters of online digital media broadcasting. The result of this is to abandon especially older Canadians that access CBC programming on traditional linear and OTA TV—at least 28% of the viewer population and up to 73% if younger and more occasional users of linear and OTA TV are included,” they add.
PIAC/NPF further argue “private broadcasters will likely petition the CRTC to grant them the same ‘flexibility’ as CBC/SRC to move their resources, previously committed to linear and OTA TV broadcasting, to unregulated DMB services,” indicating they expect “these calls for flexibility by Canadian private broadcasters will be brought soon and will be successful.”
In the meantime, CBC/SRC will reduce if not eliminate “costly local programming on linear and OTA TV, especially local news,” PIAC/NPF say.
This decision, they argue, will create a dangerous precedent which, not only will be emulated by commercial broadcasters that will request a similar deregulatory treatment but Netflix, Amazon Prime, Apple TV+, Disney+, YouTube and any other foreign-based audio-visual online service will do the same.
They suggest the CBC be issued two-year administrative renewals, just as the private broadcasters were given, to allow for the CRTC and Canadian Heritage to implement Bill C-11. (On July 4, the CRTC administratively renewed the licences of large English-language and French language television ownership groups until Aug. 31, 2024.)
CAB
Along the same lines as Québecor, the CAB questions the fact that the CBC can solicit advertising on all platforms and suggests it be phased out and requests it also be stated that the Corporation’s Tandem branded content service is inconsistent with the Corporation’s mandate.
The organization quotes the Minister of Canadian Heritage’s mandate letter, which includes: “Updating the Corporation’s mandate to ensure that it meets the needs and expectations of Canadian audiences, with unique programming that distinguishes it from private broadcasters; and providing additional funding to make it less reliant on private advertising, with a goal of eliminating advertising during news and other public affairs shows.”
The CBC’s licence renewal decision, however, “does not set the stage for achieving either of these objectives. Instead, it establishes a radically different regulatory framework for the Corporation than existed historically and will give the public broadcaster significant discretion in terms of what programming it chooses to broadcast (…),” the petition reads.
FRIENDS
FRIENDS objects to the fact the CRTC failed to impose sufficient obligations on the Corporation for local news. The organization also objects to the Tandem program and the asks the government to, “implement baseline expenditure requirements for Canadian programming and establish an appropriate allocation of resources as between licenced and unlicenced broadcasting services.”
“Despite the professed recognition by both CBC and the CRTC regarding the vital importance of news, including local news, this Decision leaves CBC with no material new requirements in this regard. In fact, its requirements have been reduced. FRIENDS believes the Commission’s position here to be at best inconsistent and, at worst, hypocritical. The CRTC has correctly characterized CBC’s obligations towards news and local news in its words, but utterly failed to ensure them through their actions,” the FRIENDS petition reads.
It goes against the mandate letter of the Minister of Canadian Heritage, which asks him to increase the production of national, regional and local news.
FRIENDS also proposes the Governor in Council instruct the minister to go forward with the plan to modernize the CBC as instructed in the mandate letter.
Speaking of the mandate letter, the petition concludes: “Departmental officials have suggested that these initiatives will be undertaken as soon as the Department’s legislative agenda permits. Given that that agenda includes the Online Streaming Act, the Online News Act and anticipated Online Harms legislation, FRIENDS fear is that CBC will never get the attention it so clearly requires.”
AQPM
AQPM argues the licence renewal decision will have wide-reaching affects.
“By removing the basic requirements for the Corporation, the Commission is putting the entire Canadian broadcasting ecosystem at risk,” said Hélène Messier, president and CEO of the AQPM.
“The existing obligations were clear benchmarks for the industry and easily measurable. By abolishing the Corporation’s legal obligations on elements that are pillars of the Canadian broadcasting system, the Commission is creating chaos and uncertainty throughout the entire chain of creation, production and distribution of Canadian content,” she added.
“The recent decision sets a major precedent that large private broadcasting groups will undoubtedly seek to benefit from when renewing their own conditions of licence. It will also influence the terms and conditions of service orders of online companies that will be subject to the Commission’s jurisdiction when Bill C-11 is assented. An ecosystem that took decades to build will have been dismantled in a few unfortunate decisions.”
CMPA
One of the concerns of the CMPA is with the timing of the decision.
“This Decision comes at a time when the Commission may soon initiate a large-scale policy review of the Canadian broadcasting system,” its petition reads. “Legislative amendments to the Broadcasting Act (Bill C-11) will have a significant impact on that system, not only for the potential integration of foreign online services, but even more so because of the extensive review of existing regulatory policies that will flow from it.”
The organization is requesting a minimum exhibition requirement for Canadian programming, a minimum spending requirement for the proportion of Canadian programming to be produced by Canadian independent production companies, within a cross-platform framework, a minimum spending requirement on Canadian programming for the CBC’s licenses and an obligation for the CBC to enter into terms of trade agreements with the CMPA and AQPM.
Like PIAC/NPF, the CMPA proposes the CBC’s licences be renewed administratively for two years.
“That extension would then ensure that the licences for the CBC would expire at the same time as those for the large private groups (in August 2024), all following a full-scale policy proceeding initiated by the legislative amendments to the Broadcasting Act proposed in Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts,” CMPA’s petition says.
Process
The Broadcasting Act defines the parameters of an appeal to Cabinet: “Where the Commission makes a decision to (…) renew a licence, the Governor in Council may, within ninety days after the date of the decision, (…), by order, set aside the decision or refer the decision back to the Commission for reconsideration and hearing of the matter by the Commission, if the Governor in Council is satisfied that the decision derogates from the attainment of the objectives of the broadcasting policy set out in subsection 3(1).”
Although the decision is made by ministers, it is more akin to a legal decision than a political decision as it has to be consistent with the Broadcasting Act.
The timelines are very tight as Heritage staff need to analyze and make recommendations, which then must be approved by the hierarchy and go in front of the appropriate Cabinet Committees (including Treasury Board) before 90 days (in this case, Sept. 20, 2022). All this is happening in the middle of the summer.
Bill C-11 has this timeline brought to 180 days, which is better for Heritage staff but not really for the sector.
Technically, the decision comes into force on Sept. 1, and we have to remember the chair of the CRTC’s mandate comes to an end on Sept. 4, while the term of the dissenting vice-chairperson, broadcasting, ends on Sept. 10.
