Survey says... by Henry Faber (CC BY-NC 2.0)

Survey says... by Henry Faber (CC BY-NC 2.0)


Reviving Bill C-10: CRTC Re-Opens Data Gathering Plans To Require Disclosures from Internet Streaming Services

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.


  1. Justa Reader says:

    Even without the legal ‘tools’, how do they have the funding to expand their mandate to an entirely new medium world-wide? Let alone that they want to use powers they don’t have, and enforce in ways they aren’t legally entitled to, how much are we already funding the CRTC for it to develop megalomaniacal ambitions?

    Luckily they were too incompetent even brute-forcing passage of this law. Since they failed (so far), they’ve decided to enforce it anyway.

    An attempt to govern the world, secret amendments, blocking debate, and now enforcing proposed laws that didn’t pass…was there a coup d’etat I missed? I thought we elected “Liberals”. Not to be hyperbolic or insulting, but these motivations resemble old fascist principles, of protectionism, cultural purity, and imperialism, by the subversion of democratic and legal restraints.

    Can they do this with the proposed C-36 too? Hopefully I didn’t just offend anyone calling them paleofacists, or else I’m going to prison.

  2. I don’t think I’ve ever seen anything like this. They’re enforcing a law that never passed? At least with past governments, once a bad surveillance or copyright law died, that was it. There was no ‘pretending the law passed’ like what I’m seeing here.

    Since this has to do with data collecting, I kind of half wonder if someone can get the privacy commissioner to send them a strongly worded letter. I can dream, can’t I?

    • Yes, good idea. It’s clear from my perspective, the Liberals are doing these things in order to trigger an election, given how outrageous some of the things they are doing now, like suing the speaker for example. It’s pretty gross all around. They don’t deserve to be re-elected but they also have zero opposition sadly. What a farce our electoral system has become.

      • Shane Leung says:

        Not surprised but as we’ve all seen before, Trudeau was even daring the opposition to bring down his government. Just think, if he can ram through nonsense like this with a minority government, imagine how much worse there will be if he has a majority.

    • Fortinbras says:

      As usual, Michael Geist misunderstands and mischaracterizes Canadian broadcasting law, regulation and policy. The CRTC’s tepid Harnessing Change report, released in May 2018, did not adopt an extreme “regulate everything” approach that envisioned mandated payments by everyone from online streamers to Internet service providers to wireless services. Instead, the report recommended new legislation abandoning the traditional method of licensing, “with a view to reducing the regulatory burden on traditional players and more fully engaging new players, while still maintaining obligations essential to the future of the system” – as ONE of the policy options the government should consider.

      When, Ian Scott said the CRTC does not have the data-gathering powers nor the enforcement tools contained in Bill C-10, he was stating the obvious. (Otherwise, why would the government propose revisions to these aspects of the Broadcasting Act?) But this doesn’t mean the Commission presently has no powers in this regard. On the contrary, now that it appears that Bill C-10 may be blocked, in spite of support from a clear majority in the House of Commons, the Commission is proceeding to fulfil its mandate under the current Act.

      For too long, the CRTC has dithered on the issue of broadcasting programming services on the Internet. In 2009, the Commission reiterated an earlier finding that it “does not consider that broadcasting in new media currently poses a threat to traditional broadcasting licensees’ ability to meet their obligations.” This finding was effectively endorsed in the exemption order for digital media broadcasting undertakings of 2012. Since then, despite the threat posed by the Internet giants, the CRTC has done nothing on this issue. Konrad von Finckenstein (2007-2012) and Jean-Pierre Blais (2012-2017) ignored this issue in line with conservative and populist principles, and up to now, Ian Scott (2017- ) has not taken any action either.

      However, if Bill C-10 fails to go forward (as seems likely), the CRTC now has a policy road map to follow and it is only natural that the Commission proceed along this path within the limits of the powers it currently possesses. As I have said before, the Commission already has substantial powers regarding the regulation of broadcasting programming services on the Internet and Bill C-10 does not significantly expand these. (In fact, paragraph 2.1 reduces them by excluding social media users.)

      With regard to the FRPC (Monica Auer) argument, suppose for the sake of discussion that it is partially valid. That is, given that the Direction to the CRTC (Ineligibility of Non-Canadians prevents the CRTC from issuing licences to non-Canadian programming undertakings, such undertakings cannot be part of a class of licence that the CRTC exempts from the Act. All the same, because an undertaking cannot be licensed does not mean it is not engaged in broadcasting as defined by the Act. Consequently, other provisions of Part II of the Act, such as those relating to inquiries, research and hearings, would still apply. Monica Auer and Michael Geist may well believe that the Governor in Council 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, but this is not true. The Commission’s ability to collect information is not limited to licensed undertakings.

      As we have seen, the Yale Review Panel proposed to walk around the Direction to the CRTC/DMEO dilemma by creating a new regime for registering new media undertakings, rather than licensing them. Bill C-10 follows along this path with new names and classifications, many of which confirm or recategorize the CRTC’s existing powers.

      So, as CEO, Ian Scott is proceeding to move the CRTC forward on a path that has been recommended by the Government of Canada (in the form of Bill C-10), while using the powers currently at his disposal. The Commission’s latest call for comments on a new, annual digital media survey is a step in this direction.




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  5. The CRTC needs significant reform as it is no longer objective. It is now a promoter of Canadian content instead of a regulator.

    Canadian content rules were introduced in the late sixties for two reasons: to give producers of Canadian content access to the market (CTV and CBC were the only networks); and to keep the American boogeyman at bay.

    Over the years the complaints from producers of Canadian content have changed from CTV and CBC won’t buy our content to not enough Canadians watch it. In response the CRTC has introduced new policies to help promote Cancon like simultaneous substitution (more money for the networks so they can spend more on Canadian content), mandatory carriage for channels of national importance, mandatory fees, and now discoverability.

  6. who wants to start a class action lawsuit on the crtc for this, and a charter case on c-10 and c 36 ?

  7. and when you dole out cash to canadian producers and content you get exactly the same result of all the wokeness of hire for race and diversity instead of hire for quiality

    In simpler terms, they are gettignmoney to make stuff that without said money would never get made nor seen , and thus is not only NOT artistic , its not entertainment its a welfare program….


  9. here is why liberal tried to rush this bill handed to them by americans to do there bidding, specifically the democratic party….

    in future if the bill passes the effect will be easier to jsut ban all discussions of health for fear you are in any shape way or form liable.
    Is this site hosted on american soil?