Mark Goldberg


www.mhgoldberg.com





#CTS20

Getting out of the way

The CRTC is putting Canadians at the centre of their communication system.” At least, that is what the Commission’s press release proclaimed in announcing its latest 3-year plan.

The reality is that the CRTC is still stuck in the middle of Canada’s communication system. Everything Canadians want to watch, even on the internet, goes through the CRTC. Everything.

Recall that the Chair of the CRTC made this very clear in admonishing a witness during the Local TV hearing in January in reference to YouTube:

  1. THE CHAIRPERSON: You see and maybe your difficulty of seeing that is based on — and you’ve repeated a number of occasions in your oral representation of always referring to the unlicensed element of the broadcasting system as unregulated, as opposed to what it really is and that is unlicensed.

And let’s not forget the run-in with Netflix and YouTube last fall, when those companies refused to acknowledge the CRTC’s authority to order production of data for the TalkTV hearing. The CRTC Chair told Netflix “You operate subject to an exemption order that requires you to provide information. Failure to provide information puts at risk your exemption order.”

Rather than have its powers tested in court, the CRTC ordered the destruction of the transcripts and struck all YouTube and Netflix evidence from the record of the proceeding. Thankfully, CPAC has preserved the video record of the exchange. It is an important piece of Canada’s regulatory history and it (together with the second part) will hopefully be archived. The interaction (beginning at at 22:30 of the video) is compelling viewing.

The CRTC has also put itself into the middle of commercial contracts for programming, most notably NFL football broadcasting, not only for the Super Bowl but for a mobile football app. The CRTC is also investigating pricing models of mobile services, despite having forborne from regulating such prices.

Earlier this week, the CRTC decided that a competitive Canadian TV distributor, VMedia, would not be allowed to carry an American shopping channel, QVC, that would be a consumer alternative to Rogers owned TSC.

Although there is no evidence of QVC establishing any physical premises in Canada or having bank accounts or employees in Canada, it is clear that QVC intends to do business with Canadians located in Canada. Specifically, it intends to sell its products to Canadians on a continuous basis and to ship them directly to Canadians. As well, its toll-free number can be dialed from a Canadian telephone.

While there are programming services on the list that sell products to Canadians, unlike QVC, these are not dedicated to teleshopping services funded primarily by retail sales to viewers.

Buffalo’s PBS station, WNED, promotes itself with “Toronto” and the Canadian flag as part of the station’s logo. WNED actively solicits “donations” with its sales of DVDs and other items. The “Canada” page of the station’s website states “More than half of WNED | WBFO’s membership is Canadian”. The CRTC cited a 2003 decision that found “insufficient evidence on the record to show” that allowing QVC into Canada “would benefit Canada and Canadian consumers.” So much for putting Canadians in the centre of our communication system.

All of which raises the question of why, in an era of global internet content and competitive distribution, do we need regulation of any broadcaster that isn’t using over-the-air spectrum? If “The CRTC is putting Canadians at the centre of their communication system” maybe it should look at simply getting out of the way?

On June 8, one of the panels at The 2016 Canadian Telecom Summit is “Personalizing Entertainment & Information”, looking at the ongoing video revolution. It is certain to be discussing these kinds of issues and more. Have you registered yet?

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