Can the Commission regulate the CBC’s digital activities?
By Denis Carmel
GATINEAU – Monday will mark the beginning of the renewal hearing of the CBC/Radio-Canada broadcasting licences, which was originally scheduled to start on May 25, 2020.
The original deadline for interventions (after the CBC received an administrative renewal in August 2019) was February 13, 2020, later moved to February 20, after putting on the public record a report the CRTC had commissioned: Harnessing public broadcasting for Canadians in the digital age: International benchmark study for the CRTC.
Finally, in June 2020, the hearing date was set and announced to be held at the usual place on Promenade du Portage in Gatineau, perhaps hoping Canada would miss a second wave of Covid-19.
Then, in November, the Commission announced the hearing would be a virtual hearing, starting at 10 a.m. on the same day: January 11th.
Some groups have requested changes to schedule as well as including more information on the public record. More information about the three-year strategic plan, more information about the manner in which the production of its English- and French language in-house programming meaningfully includes in key production roles individuals that reflect the diversity of Canadian society.
Others suggested the renewal process be postponed for various reasons.
For example, the Forum for Research and Policy in Communications (FRPC) suggested that the Commission terminate the CBC/SRC licence renewal process and launch a public proceeding to consider more broadly the role of public broadcasting in Canada and that such a review be conducted by way of a public hearing in early 2021.
The CRTC responded no, “the Commission is of the view that the CBC/SRC’s mandate is set out in the Broadcasting Act and the current licence renewal process can be examined by taking into account this current mandate.”
The Canadian Media Producers Association (CMPA) asked the process be postponed for a period of two years because of the significant developments related to the Canadian broadcasting industry’s current policy and legislative environment, particularly with respect to the consideration of Bill C-10 (the bill to amend the Broadcasting Act) by Parliament.
The Regulator responded to the CMPA noting “the Commission is of the view that the CBC/SRC’s mandate is set out in the Broadcasting Act and that the current licence renewal process can be completed with reference to this current mandate. Bill C-10 has not been adopted by Parliament at this time and thus the Commission’s responsibility is to regulate and supervise the public broadcaster under the current Broadcasting Act and will continue to do so as part of this proceeding.”
Other requests were made but the CRTC refrained from reopening the renewal process too widely and pushed on.
So, despite an old(ish) record with many events occurring in the meantime, the Commission panel comprised of Ian Scott, chairperson; Caroline Simard, vice-chairperson, broadcasting; Alicia Barin, Québec; Monique Lafontaine, Ontario; and Claire Anderson, British Columbia and Yukon, will start the hearing with the presentation by the corporation followed by discussion and questions from the Commission on the proposed framework and broad programming strategy, on the first day.
The continuation of discussion and questions from the Commission on the proposed framework and broad programming strategy, and questions from the Commission on various elements of the Corporation’s programming strategy and commitments on the second day and a further two days of questions from the Commission on various elements of the Corporation’s programming strategy and commitments.
On Friday the panel will hear the first of 70 intervenors, starting with the CMPA, for another nine days!
From the outset, the Commission seemed to be going in the direction of a new regulatory framework for the public broadcaster. In the questions it asked at the very beginning relating to the inclusion of digital services under the framework: “In your view, would taking into consideration the entirety of the CBC/SRC operations, including its online platforms, better allow the Commission to ensure that policy objectives and outcomes could be achieved?,” the Commission had asked in the letter launching the process back in the summer of 2019.
“The Commission has proposed a new annual digital media survey, in Notice of Consultation 2019-90 for currently licensed Canadian broadcasting undertakings. Please comment on the possibility of imposing this reporting requirement on the CBC/SRC through a condition of licence,” it went on.
The Corporation’s response made it seem it was reluctant to embark on this journey. “CBC/Radio-Canada believes that, in the long run, the full range of the Corporation’s programming activities—on both traditional and digital platforms—should be taken into account when assessing CBC/Radio-Canada’s role in the Canadian broadcasting system. However, under the current Broadcasting Act there are significant limitations on the Commission’s ability to regulate all of these activities in an effective and administratively efficient manner. A more comprehensive approach would appear to require legislative reform.”
And in the notice of Hearing of November 2019, the Commission said: “As set out in section 9 of the Act, the Commission has the authority to either license services, or exempt services from licensing requirements. While the Corporation operates its television and radio services pursuant to existing licences, it operates its online platforms under the Exemption order for digital media broadcasting undertakings, which is set out in the appendix to Broadcasting Order 2012-409.
“Under a scenario where the Commission considers content on online platforms as contributions to the Corporation’s ability to meet its mandate under the Act, only existing regulatory tools can be used when establishing requirements for the Corporation during the next licence term. Accordingly, in this notice of consultation, the Commission is seeking comments on whether the Corporation’s operations as a whole should be considered under a more adaptive regulatory framework and, if so, by what means.”
In the Harnessing public broadcasting for Canadians in the digital age, International benchmark study for the CRTC. The study’s objective is described as: “The TV and radio licences of Canada’s national public broadcaster (CBC/Radio-Canada) are up for renewal, but their services have expanded well into the digital space. Legislative changes required to introduce new approaches are still some time away, but we are exploring an interim approach that encompasses all of CBC/Radio-Canada’s services.”
It notes “In all countries, the provision of new online digital services is now part of the public service obligation of the PSM. The recognition of this extended remit was recognized at different moments and with different limits.”
To get back to the Notice of Public hearing of November 2019, the CRTC indicated then “this proceeding is designed, in part, to explore how the Commission can be flexible in terms of its regulatory approach for the Corporation, while ensuring that the Corporation fulfils its mandate as set out in the Act in the most appropriate fashion, given technological advancements and the variety of means available to Canadians to access content produced by the Corporation.”
So, the table is set for a sea change in the regulatory approach towards the CBC, and broadcasting, as it is getting ready to embark on the renewal of the large private broadcasters whose licences expire at the end of August, 2022. In the changes announced by Bell Media this week indicate a real convergence approach to content and distribution and Cartt.ca sees an effort to reduce the impact of Covid-19 on the bottom line of the company.
Cartt.ca expects this long hearing to be both boring and exciting and the real story at this time will be the spirit that will prevail in the interactions between the Commission and the Corporation and how and if the Commission will elaborate on its future approach – again to both the CBC and broadcasting in general.
“This public hearing is an important opportunity for CBC/Radio-Canada to share its vision for building ‘a bridge to the future’ with Canadians, the media industry, and all stakeholders. Our proposal puts audiences and their viewing habits at the heart of everything we do, and recognizes the growing urgency of representation of all Canadians in our news and entertainment programming. Digital and diversity are the two transformative forces that should guide the national public broadcaster in its next licence term to better serve Canadians wherever they are—on television, radio and increasingly, online,” said Catherine Tait, president and CEO, CBC/Radio-Canada in a press release late last week.
“As the first broadcaster to propose that the CRTC recognize audio-visual programming on digital platforms, we believe that this is an important step in transitioning to a modern broadcasting system that serves all Canadians. We look forward to discussing our proposals, and to hearing from Canadians, over the course of the hearing.”
