OTTAWA – The CRTC today approved the launch of an annual digital media survey, to be administered to all digital media broadcasting undertakings (DMBUs) that operate in Canada, either in whole or in part, that meet certain thresholds.
The thresholds outlined in the regulatory policy published by the CRTC on this matter include total annual revenues for the previous broadcast year from the Canadian broadcasting system that exceed $25 million for audio services and exceed $50 million for audiovisual services.
Among other things, the survey asks for information on subscription revenues, advertising revenues, and subscriber numbers, according to the templates of the survey forms included in the regulatory policy. For audio services specifically, it asks about royalty payments to Canadian and non-Canadian artists and content creators, and for audiovisual services it asks about Canadian and non-Canadian programming expenditures.
The Commission is granting “full confidentiality against any disclosure of data at the level of individual DMBUs,” according to the regulatory policy, and “will determine at a later date if the collected data will be published in aggregate form and, if so, the appropriate level of detail to disclose.”
Responses to the survey for the 2020-2021 broadcast year need to be filed by June 30, 2022. Surveys for subsequent years will be administered in the fall and will need to be filed by Nov. 30.
The CRTC first sought feedback on the idea of an annual digital media survey for licensed Canadian broadcasting undertakings back in March 2019. As Cartt.ca reported previously, there were a significant number of Canadian broadcasters who submitted interventions for this proceeding arguing the survey should be applied to all DMBUs operating in Canada.
In July 2021, the Commission reopened the proceeding, stating it wanted the survey to be administered to foreign DMBUs operating in Canada as well.
There was some question as to whether the CRTC has the authority to do this.
The Commission’s policy published today indicates it determined it does have the authority to require non-Canadian DMBUs operating in Canada to complete the survey based on section 2 of the Broadcasting Act, in which “broadcasting” is broadly defined, and subsection 4(2), which states the act applies to broadcasting undertakings operating in whole or in part in Canada. “The location of the person operating the broadcasting undertaking is not determinative of whether a service is carrying on in whole or in part in Canada,” the policy reads.
“Where the Commission determines that broadcasting is occurring within the Canadian broadcasting system, it has the authority to regulate such broadcasting and the relevant broadcasting undertakings. This authority extends to non-Canadian undertaking (including DMBUs) broadcasting within Canada.”
The Broadcasting Act also gives the CRTC the authority to either “license and regulate broadcasting undertakings under subsection 9(1) and section 10,” or, as per subsection 9(4), “exempt them from licensing or other regulatory obligations,” the Commission’s policy says.
“These are the only legal bases upon which broadcasting undertakings may be carried on in Canada, as section 32 of the Act makes it an offence for a person to carry on a broadcasting undertaking in Canada without either a licence or a valid exemption.”
The Commission notes the Forum for Research and Policy in Communications, however, made the argument “that the Commission cannot require non-Canadian DMBUs to submit information to it, as the Commission’s power to issue exemption orders is limited to exempting classes of licensees and, since the Direction to the CRTC (Ineligibility of non-Canadians) (the Direction) prevents the Commission from licensing non-Canadian broadcasting undertakings, the DMEO (Digital Media Exemption Order) does not apply to them.”
The CRTC responded that while “the Direction does state it cannot issue a licence to a non-Canadian, as defined therein, it says nothing in regard to the Commission’s authority to exempt such broadcasting undertakings.” Based on this, the Commission said, “all broadcasting that takes place in Canada falls within the regulatory purview of the Commission.”
For the CRTC’s full decision, please click here.
