Bill C-10 may be dead for now (Senate discussions on returning during the summer will reportedly not include the bill), but CRTC Chair Ian Scott has signalled a willingness to move ahead with Bill C-10-like policies. In fact, even without legislative reform, the CRTC last week announced that it is re-opening its approach to a digital media survey by seeking to expand it to cover foreign streaming services. The decision is notable for several reasons, not the least of which is that the survey would overlap with the data disclosure provisions in Bill C-10 and Scott had previously indicated that he did not believe he had the legislative tools to require data disclosures.
To understand the latest CRTC moves, it is important to recognize the Scott has advocated for increased Internet regulation for years. In fact, nearly two years before the Yale report, the CRTC released the Harnessing Change report, which adopted an extreme “regulate everything” approach that envisioned mandated payments by everyone from online streamers to Internet service providers to wireless services. In other words, under Scott, the CRTC has been quite open to increasing consumer costs for Internet access with new levies.
Scott’s support for more Internet regulation and mandated payments continued during the Bill C-10 debate. While declining to comment specifically on the Parliamentary process, when asked if the CRTC would examine alternative regulatory options if Bill C-10 failed, Scott responded “the short answer is yes and it has to be yes.” Scott acknowledged that his regulatory powers were limited, however, stating that “we do not have those data-gathering powers that I mentioned, nor do we have the enforcement tools.”
Despite that admission, last week the CRTC quietly tried to replicate Bill C-10’s data gathering powers without the benefit of actual legislative reform. As part of the 2019 Harnessing Change report, the CRTC concluded that it needed more data in order to better understand the evolution of digital media. It designed an annual digital media survey and sought feedback on its approach. The proposed survey was limited to licensed broadcasting undertakings and expressly excluded foreign online streaming services (arguably a tacit admission that it did not have the regulatory power to enforce mandated disclosures):
The Commission intends to launch a new, annual digital media survey, to be part of its Annual Broadcasting Survey for the fall of 2019. The survey would be administered to all currently licensed Canadian broadcasting undertakings (radio, television and distribution) in order to collect financial information on their digital media broadcasting activities for the 2018-2019 broadcast year, using the Commission’s data collection system. As such, the survey would not be administered to any non-Canadian digital media broadcasting undertakings that provide services in Canada, or to any Canadian digital media broadcasting undertakings that are not associated with a licensed undertaking.
That consultation generated over 20 responses with many in the Canadian culture lobby (such as ACTRA and the CMPA) arguing that it should be expanded to cover foreign Internet streaming services. Others such as Rogers called for the survey to be dropped altogether, while the CBC expressed concerns about the release of the data, arguing that “we do not believe that any data should be made public even in aggregate form unless and until the Commission obtains the same date [sic] from the dominant non-Canadian players.” While many called for expanded survey coverage, the Forum for Research and Policy in Communications (FRPC) injected some realism into the process:
While the DMEO applies to Canadian online programming services, it does not apply to foreign online programming services, as the scope of the CRTC’s authority to issue exemption orders is limited to classes of licence. While it has full jurisdiction over broadcasters operating “in part” in Canada and has the power to define classes of licence, the Direction to the CRTC (Ineligibility of Non-Canadians) specifically prevents the CRTC from issuing licences to foreign programming undertakings. As a result, foreign programming undertakings (online or ‘conventional’ over-the-air and satellite delivered services) cannot under the Direction be part of a class of licence that the CRTC may exempt from the requirements of Part II of the Act. The Forum believes that the Governor in Council (GIC) must modify the Direction to the CRTC (Ineligibility of Non-Canadians) to permit the CRTC, by amending the DMEO, to collect information from foreign online programming services operating in part in Canada.
In other words, the CRTC does not have the power to compel disclosure from the foreign services, something even Scott hinted at last month. Yet despite the legal limits (which played out years ago in a showdown over CRTC demands that Google and Netflix disclose data), the CRTC is apparently determined to march ahead. Its latest consultation states:
the Commission announces the reopening of the record of this proceeding. Further, the Commission calls for comments on the revised survey form set out in the appendix to this notice of consultation (which replaces the survey form appended to Broadcasting Notice of Consultation 2019-90) as well as on its administration, on an annual basis beginning in fall 2021, to digital media broadcasting undertakings that provide services in Canada, including non-Canadian undertakings operating under the Exemption order for digital media broadcasting undertakings set out in the appendix to Broadcasting Order 2012-409.
The consultation also asks for views on what an appropriate threshold would be for these requirements, which will provide the first hint of what the culture lobby has in mind with respect to thresholds exempting some services from Bill C-10 style regulatory requirements. That information will be useful, but the bigger issue is that in the absence of Bill C-10, the CRTC has opened the door to another legal showdown over the scope of its regulatory power. That may provide an advance preview of Canada’s effort to apply its rules to services operating around the world with the possibility that in the absence of Bill C-10, the entire exemption for digital media services will be revisited. Bill C-10 may soon be dead, but Ian Scott and the CRTC are seemingly itching to apply their regulatory muscle with or without legislative reform.