GATINEAU – There are a good number of phone calls and meetings happening behind the scenes in Gatineau and Ottawa as the CRTC struggles to figure out what to do after being told “no” by Netflix and Google.
As most have heard by now, the American tech behemoths, who were invited by the CRTC to appear at the TV Policy Review hearing (they didn’t ask to appear, they were asked…) got rough rides from chairman Jean-Pierre Blais over data they didn’t bring, and/or won’t submit as evidence, no matter what the CRTC’s confidentiality rules state.
While we noted Tuesday that both Google and Netflix have filed undertakings answering some of the questions posed, neither filed the Canadian user data the Commission asked for. In a heated appearance last Friday, Blais ordered Netflix to comply with its demands and by the Monday deadline, it did not. That appearance and Netflix’s refusal to accede to the Commission’s demands, has now overshadowed the entire hearing, despite the fact this is a multi-faceted hearing examining many issues which has taken over a year and has heard from thousands of Canadians – many of whom have concerns beyond Netflix.
The Commission has also not posted the undertakings it considers incomplete from either company on its web site, while the rest of those filed by other parties are already there. Netflix's can be found here, however.
There are a number of choices the Commission can make, none of them easy, as we already have reported. It can swallow hard and just let it go, knowing that in time, this too shall pass and commissioners and staff can get down to needed policy decisions, but that sets a poor precedent by allowing companies to ignore the CRTC. It can launch a new proceeding on OTT video, or revoke the digital media exemption order (what most call the “nuclear option” which no one believes the Regulator will do).
Or, according to a regulatory law expert we talked to, the CRTC can hold a hearing under section 12 of the Broadcasting Act and then issue a mandatory order to Netflix to supply the requested information. Then, under section 13 of the Act, the CRTC's order can be converted into an order of the Federal Court of Canada.
Doing this, according to our expert who asked not to be named, would not require the CRTC to revoke Netflix's status as an exempt service or even go near the "Netflix tax" issue. It would also let the CRTC avoid the situation of establishing a precedent whereby non-Canadians who carry on broadcasting in Canada can simply ignore the CRTC's jurisdiction. And violating a Federal Court order would find one in contempt of court. Not a trifling matter.
However, according to a CRTC spokesperson, no decision had yet been made by the time of this writing on Wednesday evening. While our sources inside the CRTC told us earlier this week an announcement would come by Wednesday, that clearly hasn’t happened. However, with another contentious, week-long hearing on another very politicized topic (wireless) starting Monday, which is also to be headed by chairman Blais, it would seem whatever course of action the Commission would want to pursue, may be announced shortly.
