Radio & Television

COMMENTARY: More discretion, more power: Does C-11 delegate too much to the CRTC?


By Monica Auer

THE FEDERAL GOVERNMENT is asking Canadians to trust the Canadian Radio-television and Telecommunications Commission (CRTC) to implement new legislation about electronic communications.

The CRTC is now responsible for implementing Canada’s Broadcasting and Telecommunications Acts, Canada’s ‘Anti-Spam’ law as well as parts of the Canada Elections Act and the 2019 Accessible Canada Act: the government is proposing through Bills C-11 and C-18 to give the Commission more powers over Canadian and foreign Internet broadcasters as well as Canada’s news media, along with new authority to levy administrative monetary penalties for non-compliance with the CRTC’s requirements.

In February the government assured the House of Commons that the CRTC can take on new duties. In debating Bill C-11 and its changes to Canada’s 1991 Broadcasting Act the Parliamentary Secretary to the Leader of the Government told the House of Commons that the CRTC has done its job well, is apolitical, ensures the representation of industries and Canadians, and offers a sense of accountability that gives the government confidence in the Commission and its activities. Yet the basis of the government’s assurances is unclear.

In fact, the most recent review of the CRTC’s performance took place twenty years ago. Even then, the detailed 2003 report of the Standing Committee on Canadian Heritage on the second century of Canadian broadcasting devoted just 11 (1.8%) of its 614 pages to regulatory governance and accountability. The CRTC itself does not publish any information about the way in which Parliament’s broadcasting policy for Canada has actually been implemented. What supports the government’s assurances about its trustworthiness and accountability, therefore? And how will new broadcasting legislation ensure that the CRTC serves Canada and Canadians well over the coming years?

At the moment the CRTC’s main job in broadcasting is to license and regulate broadcasters “with a view to implementing the broadcasting policy” for Canada set out by Parliament in section 3 of the Broadcasting Act. This policy includes requirements to make “predominant” use of Canadian resources to create and present programs, and says Canada’s broadcasting system should offer “information and analysis” about Canada and other countries. A number of stakeholders have questioned how well these requirements are being met.

The CRTC publishes little or no information about Canadian radio and TV broadcasters’ program creation, but data published by Canada’s independent media producers show that the average number of TV ‘projects’ and hours of TV produced per licensed Canadian TV service decreased from 2004 to 2019 (excluding the atypical 2020 and 2021 pandemic years), by 34 and 10%, respectively. In 2018, moreover, the CRTC reduced the regulatory requirement for Canadian programming in private TV broadcasters’ schedules from 60% to 17%. The CRTC’s main Canadian content regulation for radio requires private stations to ensure that no more than 65% of their popular music selections are foreign, a level that has not changed in 22 years.

As for news, although the CRTC has long stressed its importance to democracy, it dropped all policy requirements for local news on AM radio stations decades ago and from FM radio stations in 1993. After abandoning the regulation of TV news in the early 1990s the CRTC in 2009 set minimum levels of TV news for large ownership groups based on the size of the communities served by their TV stations – but as the CRTC does not require news to be ‘original’, stations may and do replay the evening news from the night before, presumably counting the reruns towards their requirements.

When licensees control both radio and TV stations in the same location some of their radio stations broadcast their sibling TV stations’ newscasts. Meanwhile, when parties protested Rogers Media’s cancellation of two dozen third-language news and information programs on OMNI TV in 2012/13 the CRTC concluded that the $2 million required to reinstate the programs – representing  0.1% of the licensee’s operating revenue in 2014 – might “create an undue financial burden for Rogers”.

After Rogers cancelled all local ethnic newscasts in May 2015, five months before the October 2015 Federal election, parties asked the CRTC to address this loss of news – and the CRTC waited to early 2016 before denying the requests, thereby rendering any challenge of the decision moot insofar as the election was concerned. In brief, hard evidence of the CRTC’s commitment to maintaining let alone strengthening news for the sake of Canadian democracy is scarce.

The Heritage Minister also told the House in February that Bill C-11 would protect “our culture, our jobs, our creators and the voice of Canadians.” Along with Canadian programming and news the current Broadcasting Act says that Canada’s broadcasting system “should” provide Canadians with employment opportunities – and since 1991 employment in the broadcasting sector has grown by 36%. Yet this growth has been limited to employment by cable and satellite companies that distribute programming – since 2003 the CBC, private radio and TV stations and discretionary TV services that commission and/or produce programming have all shed jobs: more than 8,000 since 2003.

The CRTC allows radio stations to run automated programming (i.e. without staff) and in 2019 81 (47%) of Canada’s 188 licensed discretionary TV services operated without any staff at all.  These changes have attracted little attention from the CRTC: of the 14,314 CRTC decisions issued about broadcasting since 1991, just five referred to full-time employment opportunities. The CRTC has no specific policy focussed on employment. While jobs clearly matter to Parliament, there is sparce evidence of the CRTC’s interest.

A recent statement by the CRTC’s chairperson that the Commission has “a strong track record of implementing effective policies” is difficult to reconcile with outcomes such as those described above. They explain why people familiar with the CRTC’s determinations of the past thirty years do not fear that it will suddenly impose draconian Canadian exhibition and expenditure requirements on online streaming services. They fear the reverse: that for ‘practical’ reasons, to avoid imposing ‘undue’ administrative burdens on broadcasters, or for vague reasons unstated in the Broadcasting Act such as competition and regulatory symmetry, the CRTC will continue accept ever-decreasing levels of Canadian program productions and expenditures, as well as employment opportunities, or that it will use its procedural powers to ignore Canadians’ concerns or delay their resolution until smaller companies capitulate to those with deeper pockets.

But Canada can avoid this worst-case scenario: Parliament could use Bill C-11 to correct four problems in the current Broadcasting Act that have weakened, if not stalled, the implementation of Parliament’s broadcasting policy.

Mandate actual objectives

First and foremost Parliament should decide if it wants to maintain the polite fiction that is Canada’s broadcasting policy. The sheer profusion of sections and subsections set out in section 3 – 41 – obscures the fact that just three use “shall” and are therefore mandatory. Five others are interpretative declarations such as the statement ‘educational programming is part of the broadcasting system’. The remaining 33 sections’ use of “should” means not just that their objectives are not mandatory, but that the CRTC has near-complete discretion in deciding whether to implement them. These sections address matters including news, employment opportunities, affordable cable and satellite rates, accessible programming and programming that reflects Canada’s regions, multiculturalism and Indigenous peoples.

In 2019 the Supreme Court held that administrative decision-makers such as the CRTC are not “permitted to disregard or rewrite the law as enacted by Parliament ….” – but the CRTC has not had to disregard or rewrite the Broadcasting Act to make its choices because of the enormous discretion granted to it by section 3. If Parliament actually wants the CRTC to implement specific objectives in its broadcasting policy, it needs to say so in Bill C-11 by changing at least some of the dozens of ‘shoulds’ in Canada’s broadcasting policy, to ‘shalls’.

Mandate decision-making in the public interest

Second, Parliament should revise the Broadcasting Act’s “regulatory policy” whose main legacy has been to hamstring anything of substance in the largely ineffectual broadcasting policy. The current act says that the CRTC “shall have regard to the regulatory policy” when it implements the broadcasting policy, and the regulatory policy says in turn at section 5(2)(g) that the CRTC should be “sensitive to the administrative burden that … regulation and supervision … may” impose on broadcasters.

This single subsection has enabled if not guaranteed ongoing deregulation at the expense of Canadian program production, scheduling and employment opportunities: what evidence can the public bring forward to refute broadcasters’ near-constant arguments that implementing Parliament’s broadcasting policy “may” impose administrative burdens, especially when broadcasters’ confidential evidence alleging future burdens cannot be reviewed and therefore cannot be challenged, and when the broadcasting policy’s objectives themselves are in any event nearly all discretionary? 

The current act effectively allows any burden whatsoever to stymie regulation and supervision. Bill C-11 must amend section 5(2)(g) to create a threshold based on reasonableness, providing that if they are proven, administrative burdens resulting specifically from regulation and supervision should not be unreasonable.

Bill C-11 should also actualize the CRTC’s many public statements that it acts “in the public interest” since in reality not one of the current Broadcasting Act‘s 93 sections requires the CRTC to make decisions in the public interest. If Parliament wants the CRTC to serve the public interest Bill C-11 should replace the convoluted and sadly ineffectual third section of the regulatory policy requiring the CRTC to tiptoe around conflicts between the broadcasting and regulatory policies with a simple statement that if conflict arises between a matter before the CRTC and Canada’s broadcasting policy, the CRTC shall resolve the matter in the public interest.

Mandate accountability

A third problem that Bill C-11 must address concerns accountability. Although the CRTC now reports annually on its departmental results these documents skirt rather than promote accountability. As mentioned above, the CRTC publishes no information about what is actually being broadcast in the broadcasting system or by Canadian programming services: how, then, can ‘progress’ in implementing Canada’s broadcasting policy ever be measured?

The CRTC’s Results reports also have gaps. Section 25 of the Broadcasting Act, for instance, says the CRTC “shall” submit a written report to the Heritage Minister if the Commission finds that the CBC has breached conditions of its licence(s). After the CBC in 2013 confirmed to the CRTC that it had breached a condition of its licence for several years, however, the CRTC neither reported the breach to the Minister nor mentioned it in its departmental results reports for 2012/13 and 2013/14. Should Parliament have to employ experts in the CRTC just to find out what it is – or is not – doing because the information is not available from the CRTC?

Or take the matter of complaints from members of the public about broadcasting. Canada’s broadcasting policy says that “the programming originated by broadcasting undertakings should be of high standard” and Parliament enabled the CRTC to consider complaints in subsections 18(3) and 21(a) the Broadcasting Act – but the CRTC decided to delegate the handling of complaints to several organizations founded by the industry (broadcasters’ Canadian Broadcast Standards Council, advertisers’ Advertising Standards Canada and the telco/cable/satellite companies’ Commissioner of Complaints for Telecommunications and television Services).

Since none of these organizations is technically responsible to the CRTC or government they may be even less transparent than the Commission. Moreover, as the CRTC no longer reports the numbers of complaints made about broadcasting it is unclear whether the Commission even considers complaints from the public or whether it is able to track trends in Canadians’ concerns about programming.

Having declared that “the objectives of the broadcasting policy … can best be achieved by providing for the regulation and supervision of the Canadian broadcasting system by a single independent public authority” Parliament did not give the CRTC the specific power to delegate its authority over complaints elsewhere: did Parliament intend that complaints about radio, television and distribution services be ‘handled’ by someone other than Canada’s quasi-judicial broadcast regulatory authority? Of greater concern: could Parliament’s acquiescence to the CRTC’s past practices of delegation encourage the CRTC to eventually delegate some of its new responsibilities under Bill C-11 to other parties – organizations that may be even less transparent and accountable than itself?

Similarly, does Parliament know that the CRTC has re-interpreted the Broadcasting Act’s requirement for “public hearings”? The act says that the CRTC “shall” hold a “public hearing” when it issues new licences or mandatory orders. Yet since 2007 the CRTC has been holding hearings that are public in name only, attended solely by CRTC Commissioners and staff. In 2018 and 2019 the CRTC held “non-appearing” public hearings before issuing new licences and mandatory orders alike: neither applicants nor interveners attended these ‘public hearings’ because the CRTC did not invite them.

The gradual fading away of public hearings where members of the public actually talk with CRTC decision-makers has not affected industry stakeholders because – though not mentioned in its departmental results reports – the CRTC’s Commissioners and staff encounter industry stakeholders at appearing public hearings as well as in private: the Lobbyists’ Registry includes 63 communications reports that private broadcasters filed about their meetings with the current CRTC Chairperson (36 meetings with the Chairperson alone, 27 with the Chairperson and other CRTC officials).

Assuming Parliament considers it appropriate for decision-makers of a quasi-judicial agency like the CRTC to meet in private with those it regulates, should Parliament then use Bill C-11 to specifically define its understanding of a public hearing and to require that the CRTC continue to hold such hearings? Unfortunately, if there is a will to limit public involvement, a way will be found:  rather than defining terms that are ordinarily well understood, Parliament could hold the CRTC to account by having it report annually on all meetings with the public through hearings and with regulated and unregulated broadcasters whether in the CRTC’s offices or, as summer tentatively approaches Ottawa, on golf courses or tennis courts.

Parliament could also use Bill C-11 to require timely decision-making. The CRTC’s 2020-2021 Departmental Results Report acknowledged that the Commission fell four points short of its goal of ensuring that 75% of its decisions are issued within four months of the close of the proceedings’ records. Yet the report excludes details such as the facts that Canadians are still waiting for the CRTC’s decisions about the CBC’s 2019 applications to renew its programming services, more than a year after the Corporation filed its final reply to interveners (March 2021),  and that programming services such as OutTV and Asian Television Network are also still waiting for the CRTC to make decisions about the renewal applications they too filed in 2019.

It’s true that the CRTC can and does renew licences administratively – but does there come a point when the use of this device is effectively overriding the current act’s maximum licence term of seven years? And – to the extent that the CRTC relies on the renewal process to deal with Canadians’ concerns about the undertakings licensed to serve them –do repeated administrative renewals that do not address substantive issues demonstrate that the CRTC takes Canadians’ concerns seriously or that they deal with such concerns in a timely manner?

Another issue related to decision-making has to do with finality. Suppose the CRTC launches investigations related to its new administrative monetary penalty powers, but never concludes them: would it be reasonable for those subjected to such investigations to wait indefinitely for the CRTC to formally close the investigations without penalties? Is it time for Parliament to specifically require the CRTC to issue decisions on the matters it considers – especially investigations of alleged misbehaviour – so that affected parties need not wait for Godot?

As for timeliness, the pandemic has obviously affected nearly every level of government. Yet a review of one hundred broadcast applications submitted to the CRTC in 2019 before the pandemic found that in the case of 12 applications the CRTC took from four to fourteen months just to post them online, and took a year or more to make decisions about 25 of them. In fact, the number of broadcasting determinations (policies, notices, decisions and orders) issued by the CRTC in the second and third non-pandemic years of the current CRTC Chairperson is 39% lower than the number of determinations issued in the second and third years of Chairperson Blais, and 49% lower compared to Chairperson von Finckenstein. Nor does the CRTC’s 2020-2021 Departmental Results Report mention that the CRTC’s review of its 31-year old policy for Indigenous broadcasting – a review that the CRTC had previously scheduled for completion in 2011, 2015, 2016, 2017, 2019 and 2021 – still remains incomplete. If the CRTC believes it has a strong track record now, it is difficult to imagine what will happen if Parliament enacts both Bill C-11 and C-18.

Mandate transparency

Fourth, and finally, Parliament should use Bill C-11 to bring the CRTC into the 21st century with respect to transparency. Since 1968 all CRTC determinations – decisions, orders, policies, guidelines and notices – have been issued by its Secretary General. As the ‘full Commission’, then comprising full- and part-time Commissioners, voted on all CRTC matters until 1990, this made sense. But since 1991 decisions issued after CRTC hearings have been made by the commissioners who actually ‘heard’ the matters, and it is unknown which commissioners make determinations about matters that are not scheduled for a hearing.

Canadians may hope that the CRTC is apolitical, but as section 20(1) of the act empowers the CRTC’s chairperson to decide who makes decisions at hearings, some commissioners wind up as favoured decision-makers while others are virtually shut out of decision-making – facts that are effectively hidden from view when the people who make CRTC determinations do not sign them.

Nor is it clear which CRTC commissioners decide which matters should not be heard – the CRTC’s by-laws establish sub-committees that may deal with such issues, but their membership and their decisions are unknown. Bill C-11 should amend the Broadcasting Act to require all CRTC broadcast determinations to be signed by those who make them, and to remove the Chair’s hidden influence over hearing outcomes by permitting the Chairperson to decide who decides only when a decision-making quorum of Commissioners cannot otherwise be formed.

Bill C-11 should also address the CRTC’s role in publishing facts about Canada’s broadcasting system. TV and radio programming services know what they broadcast and when – but the CRTC stopped publishing analyses of the information it collects about broadcasters years ago.

In today’s data-driven age, why do we not have hard information as to whether the essential elements of the broadcasting act are being achieved? How much Canadian content is available in Canada’s broadcasting system? How much news? How much Canadian programming is “original” or ‘first-run’? If the only agency with the power to obtain such information from broadcasters does not publish the facts needed to understand and evaluate how licensed broadcasters’ programming decisions are implementing Canada’s broadcasting policy today, what will change when the CRTC begins to deal with online broadcasting undertakings?

Bill C-11 is vital to the future of Canada’s broadcasting system and to Canadians – but is inadequate as currently written due to the excessive discretion it gives to an agency whose performance is both opaque and unaccountable. Left as is Canada’s cultural stakeholders may find themselves no better off than under the current Broadcasting Act. A few changes in Bill C-11 would ensure that, going forward, the system is regulated efficiently and transparently in the public interest, and that more Canadian programming becomes available to reflect Canadian stories and values in Canada and around the world.

Monica Auer is the Executive Director of the Forum for Research and Policy in Communications (FRPC).

 

 

 

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