Taking pot shots at Canada’s national broadcast regulator has practically been a national sport for many years, as observers from across the political spectrum paint the Canadian Radio-television and Telecommunications Commission as too interventionist, too luddite, too slow, or a combination of all of the above.
In recent years, the commission has worked to shed its negative reputation by increasingly adopting decisions that favour letting consumers and businesses decide broadcast winners and losers. For example, the recent fee-for-service decision promotes a negotiated settlement between broadcasters and cable companies with the CRTC betting that consumer expectations will provide sufficient incentive to ensure that local programming remains accessible to viewers.
Yet despite the seeming preference for market-led solutions, that approach appears to have been largely forgotten in a recent decision involving a small new broadcaster devoted to emerging musical artists in Quebec. Rather than giving consumers the opportunity to decide whether there is a need for such a station, the CRTC blocked the application for a broadcast licence in a decision that featured a spirited dissent from Quebec-based commissioner Michel Morin.
At issue was Glassbox Television Inc.’s licence application for the launch of AUX TV, a national, French-language specialty programming broadcaster that planned to offer programming devoted to emerging music, including assistance for emerging artists. The same company already offers a version of AUX TV in English.
Given the CRTC's focus on the promotion of Canadian culture, this application would seem like a proverbial slam dunk. While the Astral Group's MusiquePlus has offered French music programming in the Quebec market for years, it provides little coverage of emerging artists. In fact, even though emerging music videos are required to constitute 50 percent of MusiquePlus programming, those videos are broadcast from 12:30 a.m. to 9:00 a.m. on weekdays and from 1:00 a.m. to 8:00 a.m. on weekends.
Sensing a competitor in the marketplace, MusiquePlus objected to the AUX TV application, arguing the proposed programming would be directly competitive with its existing service. Avoiding direct competition has been a cornerstone of CRTC policy for many years, but it has typically been willing to define new offerings flexibly to allow for new entrants (CRTC skeptics will rightly note that true reliance on the market would welcome competitive offerings since that is the very definition of a market-led, consumer-driven system.)
Despite a clear opportunity in the Quebec market and a comparable service in English, the commission rejected the application, offering a terse opinion that AUX TV would compete with MusiquePlus and that it was “not convinced that the safeguards presented in the application are sufficient to eliminate this risk.”
That reasoning brought a stinging response from Morin. Noting the CRTC's concern with marketplace risk, he argued “the commission's role is not to eliminate competition in order to protect a service. Is ours a market economy or a state-controlled economy? This is no longer the 1970s, when the commission worked to establish a regulatory framework designed to protect a budding industry. We are in the second decade of the 21st century. No, thank you. Bring on competition as far as I am concerned!”
Morin's dissent places the spotlight on a decades-long debate on the appropriate role for the CRTC. Protecting broadcasters from competitive entrants may have seemed like a good idea when there were a limited number of channels and Canada's specialty market was in its early stages, unready to do battle with well-established U.S. giants. Today, specialty programming is the most profitable marketplace segment and competition comes from not only from other channels but unregulated Internet streaming as well. The AUX TV decision marks an unfortunate blast from the past and provides a reminder that market-led solutions are still not guaranteed in Canadian broadcasting.
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 firstname.lastname@example.org or online at www.michaelgeist.ca.