Absent explicit statutory authority

A couple weeks ago, the CRTC released its long awaited policy for an annual digital media survey.

The survey is considered by many to be a first step in the process to get foreign-owned technology firms to “contribute” to what is being called the “Canadian broadcasting system.”

The data-collection policy review began nearly 3 years ago. The CRTC process was amended to capture the activities of non-Canadian digital media broadcast undertakings” (DMBUs) “given the dominance, in terms of revenues and subscribers, of non-Canadian DMBUs relative to those operated by [Canadian] licensees”.

The initial information filing, covering the broadcast year 2020-21, is due June 30 [broadcast years are considered to run from September through August]. Subsequent annual information filings, beginning with the 2021-22 broadcast year, will be due November 30.

Respondents are to include both foreign and domestic DMBUs that provide services in Canada and either have have audio streaming revenues (from Canadians) over $25M, or audiovisual revenues over $50M. Perhaps anticipating the concerns expressed by Netflix in 2014, the CRTC is “exercising its discretion” to vary its normal procedures to “grant full confidentiality against any disclosure of data at the level of individual DMBUs.”

Will that be sufficient to get foreign-owned streaming companies to disclose market sensitive data to the CRTC? Will these firms acknowledge the CRTC’s authority over “digital media broadcasting” under the Broadcast Act?

In its submitted comments on the expanded scope of the survey, Netflix said that the company “does not take a position on the issue of the Commission’s current statutory authority.” The Motion Picture Association, representing such studios (and streamers) as Universal, Paramount, Disney, Sony, Warner Brothers and Netflix, said that data collection should be done only with “explicit statutory authority”.

Acknowledging that “the CRTC’s authority over certain exempt services operating in Canada is not always recognized by those services”, in its 2019 submission to the Broadcasting and Telecommunications Legislative Review Panel [pdf, 621KB], the Commission itself said “the CRTC must have the explicit authority to collect information from all services that operate in Canada’s broadcasting system”.

The Policy devotes 20 paragraphs, nearly 15% of the 148 paragraph decision, to the subject of the CRTC’s “authority to implement the survey requirement.”

The proposed Online Streaming Act adds the term “online undertaking” to the definition of “broadcasting undertaking” in the Broadcasting Act. 

Will foreign streaming companies file survey responses in June in advance of the “explicit statutory authority” being proposed in Bill C-11?

As I wrote in 2014, “Nobody wins in challenge of CRTC authority”.

Scroll to Top