By Ahmad Hathout
OTTAWA – A large trade group representing Canadian media producers has filed an application asking the Federal Court of Appeal to review a decision by the CRTC last month that extended the licences of the country’s national public broadcaster, using two dissenting commissioner opinions in alleging the decision goes against the objectives of the Broadcasting Act.
At issue is the CRTC’s decision to largely move away from standard hourly requirements the CBC would need to air certain content to an approach that would evaluate how it is promoting Canadian content through its spending. The regulator said in its decision – which extended the licences to 2027 – that this would give the broadcaster more flexibility, including the ability to meet diverse quotas on its digital properties – which are normally exempt from CanCon regulations.
But the Canadian Media Producers Association (CMPA) is asking the Federal Court of Appeal to review the decision because, it alleges, the regulator made these decisions “without any evidentiary basis” and did not provide notice to the parties that it was moving away from the prevailing policy framework.
“Within the substantial materials put before the CRTC by dozens of parties, there is no evidence or other reasonable basis to believe that this substantially deregulated framework would actually advance the Broadcasting Act’s policies and objectives,” alleges the leave application. “In fact, the evidence and parties’ submissions unanimously suggest that the framework set out in the Decision would be detrimental to these policies.”
The application, which was filed on July 25, claims the decision to allow for spending on digital to meet the broadcaster’s licensing obligations wades prematurely into an area of the Broadcasting Act that is currently being reviewed in Parliament.
The application leverages the dissenting opinions of CRTC commissioners Caroline Simard and Monique Lafontaine to claim, which the CMPA says points to the lack of a foundation for the majority decision.
Simard called the relaxed conditions of license a “laissez-faire” approach that “carries real and unnecessary risks of undermining the mandate of the [CBC] and the Canadian broadcasting policy as set out in the Broadcasting Act.”
Meanwhile, Lafontaine said the decision allows the CBC to “spend as much of its annual budgets as it chooses on its unregulated online platforms during the next licence term,” which “does not sufficiently balance the interests of Canadians and industry stakeholders.”
“Without notice, consultation or any clear policy guidelines,” the CMPA application said, “the CRTC’s Decision has removed the historical licensing conditions by which the CBC has been held accountable and, in doing so, effectively upended the existing broadcasting regulatory framework.
“The CRTC’s decision to remove significant accountability on the part of the CBC will have a significant and direct impact on the rights and interests of the CMPA and its members, and, moreover, will have broad reaching implications across the Canadian broadcasting industry,” the application added.
The CMPA takes specific issue with the decision’s removal of exhibition requirements for local programming, requirements to broadcast a “predominance” of Canadian programs on CBC’s television services, and minimum requirements for local, independent, children’s and youth programming, and programs of national interest during peak broadcasting hours.
“The move away from outcomes-based regulation essentially makes it impossible for the CRTC and stakeholders to determine whether the CBC is actually meeting its statutory obligations under the Broadcasting Act,” the application said.
“If the Decision is permitted to stand, there will simply be no objective basis upon which to determine whether licence compliance has been achieved. This in turn significantly diminishes the CBC’s accountability and transparency to Canadians.”
