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    The Canadian Wireless Debate is Over: How the Incumbent Carriers Lost the Support of the Government

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    Wednesday June 05, 2013
    For the past few years, there has been a lively debate on the state of the Canadian wireless marketplace. Consumer advocates and others have argued that Canadian market is not sufficiently competitive and that aggressive policy action is needed to foster greater competition and to adequately protect consumers until market forces can be fully relied upon. The incumbent telecom companies and the CWTA present a far different story, contesting multiple international studies and painting Canada as a market leader.

    The events of this week - the introduction of a CRTC consumer wireless code and the Industry Canada decision to uphold its set-aside spectrum policy by killing the Telus - Mobilicity deal - point to the fact that this debate is now over in the minds of the government. Government telecom policy in 2006 was focused on deregulation and a hands-off, industry-led approach. Those days are long gone as the government has now adopted a consumer-focused, populist approach premised on the view that a public fight with the telecom companies is a political winner.  Moreover, the government may have shifted, but the incumbent providers clearly have not, failing to adapt to the new policy terrain.


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    CRTC Should Force Broadcasters To "Compete Just Like Any Other Sector"

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    Tuesday April 23, 2013
    Last month, Jean-Pierre Blais, the chair of the Canadian Radio-television and Telecommunications Commission, delivered a much-discussed speech at the Canadian Media Production Association's annual conference. The CMPA is Canada's leading organization for the production of Canadian film and television programming and Blais' message was intended to both congratulate and challenge the industry.

    On the congratulatory side, Blais noted the Canadian film and television production had a record year in 2012, growing by over $500 million over the prior year, by far the highest total and fastest growth in over a decade. Canadian television production led the way, increasing 21.3 per cent in 2011/12, for a ten-year high of just under $2.6 billion. Most of the increase was due to English-language programming, with fiction production growing by over 41 per cent.

    Blais' challenge came in several forms, but my weekly technology law column (Toronto Star version, homepage version) notes the comment that attracted the most attention was his remark that "under my watch, you will not see a protectionist. I'm a promotionist." Most observers took the comment to mean that the CRTC will not focus on mechanisms such as Canadian content requirements and foreign restrictions as a means to advance Canadian culture.  Rather, with billions being spent on the creation of Canadian programming, it is better to concentrate on marketing and promotion of those works.

    Yet there was a second comment that garnered less attention, but that may ultimately prove more important. After encouraging the industry to become more innovative and entrepreneurial, Blais warned "you will need to compete, just like any other sector."


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    CRTC Should Force Broadcasters To "Compete Just Like Any Other Sector"

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    Monday April 22, 2013
    Appeared in the Toronto Star on April 20, 2013 as CRTC Should Force Broadcasters to Compete

    Last month, Jean-Pierre Blais, the chair of the Canadian Radio-television and Telecommunications Commission, delivered a much-discussed speech at the Canadian Media Production Association's annual conference. The CMPA is Canada's leading organization for the production of Canadian film and television programming and Blais' message was intended to both congratulate and challenge the industry.

    On the congratulatory side, Blais noted the Canadian film and television production had a record year in 2012, growing by over $500 million over the prior year, by far the highest total and fastest growth in over a decade. Canadian television production led the way, increasing 21.3 per cent in 2011/12, for a ten-year high of just under $2.6 billion. Most of the increase was due to English-language programming, with fiction production growing by over 41 per cent.

    Blais' challenge came in several forms, but the comment that attracted the most attention was his remark that "under my watch, you will not see a protectionist. I'm a promotionist." Most observers took the comment to mean that the CRTC will not focus on mechanisms such as Canadian content requirements and foreign restrictions as a means to advance Canadian culture.  Rather, with billions being spent on the creation of Canadian programming, it is better to concentrate on marketing and promotion of those works.

    Yet there was a second comment that garnered less attention, but that may ultimately prove more important. After encouraging the industry to become more innovative and entrepreneurial, Blais warned "you will need to compete, just like any other sector."

    That may sound unremarkable, but to an industry that has often focused on creating rather than competing, it represents a potential sea change.  

    For example, most of the funding for the record amount of Canadian English-language television programming came from taxpayers and broadcasters, not the original producers of the content. According to Profile 2012, an annual report on the state of the industry, only ten per cent came from private funding such as production companies and private investors. Canadian distributors covered 18 per cent of the total costs, with foreign distributors kicking in an additional nine per cent.  

    That still represents less than half of the total financing costs for Canadian English-language television programming. Federal and provincial tax credits provided the largest chunk of funding, covering 29 per cent of the cost, while broadcaster licence fees constituted another 25 per cent. The Canada Media Fund, which is jointly funded by the taxpayers and cable and satellite providers, covered the remaining ten per cent.

    The notion of competing in the market should take centre stage this week as the CRTC conducts its hearing on whether Canadians who subscribe to cable and satellite television packages should be required to pay for channels such as Sun News Network and Starlight, a proposed all-Canadian movie channel. The regulatory process has been likened to winning the lottery, since channels selected for mandatory carriage are guaranteed millions in revenue regardless of whether Canadians watch or even want the channel.

    The best approach would be to scrap the mandatory carriage rules altogether.  Instead, the Commission could require cable and satellite companies to offer all licensed channels to their customers. That would enable consumers to decide what they want to pay for and assuage broadcaster concerns that some distributors may withhold access to their programming altogether. 

    That shift in approach would represent a significant change in Canadian broadcast policy, effectively establishing a framework that requires the industry to compete for subscribers. As CRTC Chair Blais would say, just like any other sector. 

    Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.


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    The CRTC in 2017: "They Trust us to Defend their Interests as Citizens, as Creators & as Consumers"

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    Tuesday October 30, 2012
    Jean-Pierre Blais, the CRTC Chair, delivered a major address yesterday in which he sketched out his vision of the Commission in 2017. He envisions a CRTC that is trusted by Canadians a defender of their interests and that places Canadians at the centre of policy making. Blais acknowledged public skepticism about the CRTC and pledged "to earn their trust, every day, in every action and in every decision."

    Blais provided a vision that hits on many issues that should form part of Canada's long missing digital economy strategy. CRTC activity includes:
    • the creation of a Chief Consumer Officer to ensure the CRTC "examine all the issues before us through a consumer-focused lens."
    • the creation of wireless code of conduct
    • ensuring Canadians have maximum choice of providers and platforms
    • transparency in costing data of wholesale services
    • accessibility for all Canadians
    • broadband availability of downloads of 5 Mbps and uploads for 1 Mbps for all Canadians by 2015
    • enforcing do-not-call and anti-spam legislation
    • a broad definition of creators to include anyone that creates, distributes or promotes content
    • protection against cellphone theft

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