The CRTC’s deadline for the first two Bill C-11 consultations passed yesterday after the Commission rejected extension requests from a wide range of groups. Given the limited time – there was just a single workday from when the CRTC issued its rejection until the deadline – I submitted brief comments (2023-139, 2023-140) focusing on two concerns. First, the very short timeline for submissions did not allow for completion of research into the questions posed by the CRTC, including the appropriate threshold for regulation of Internet streaming services. I argued that the approach may have excluded many interested stakeholders from fully participating in the consultation. Second, I took issue with the CRTC’s framing of the consultation, which it said was “industry focused”, a signal that the consumer related issues raised by regulatory thresholds (including consumer choice and service costs) were viewed as irrelevant by the Commission.

That concern was amplified yesterday as the Canadian Media Fund, which receives nearly $200 million annually from the federal government, literally gave a trophy to Canadian Heritage Minister Pablo Rodriguez for passing Bill C-11 and CRTC Chair Vicky Eatrides delivered remarks at the Banff World Media Festival in which consumers and the broader public were nowhere to be found. Speaking of implementing Bill C-11, Eatrides stated:

Since taking on the role of Chairperson and CEO of the CRTC five months ago, I have had the opportunity to meet with a wide range of broadcasting stakeholders: private and public broadcasters, content producers, music associations, radio stations, specialty TV services, foreign streaming services, and unions and guilds.

She added:

One of the many things I’ve taken away from these meetings is that we all – broadcasters, creators, producers and regulators – have an important part to play in helping us on our journey to building the broadcasting system of the future.

The days of putting Canadians at the centre of their communications system are seemingly long gone. Eatrides vision of broadcasting regulation – articulated both in her speech and the decisions on Bill C-11 consultations – is that consumers and the broader public simply aren’t a stakeholder worth considering as part of the regulatory process. Instead, the passage of Bill C-11 signals a restoration of a members-only club in which the public, public interest groups, and even digital creators need not apply. As I concluded in my submissions:

In my view, this represents an abdication of the Commission’s responsibility to act in the public interest, suggests a lack of understanding or interest in the consumer implications of online streaming policies, and establishes a deeply troubling precedent in the Bill C-11 consultative process.

Broadcasting Notice of Consultation 2023-139

Call for comments – Proposed Regulations for the Registration of Online Streaming Services and Proposed Exemption Order regarding those Regulations

1.     I am a law professor at the University of Ottawa where I hold the Canada Research Chair in Internet and E-commerce Law and serve as a member of the Centre for Law, Technology and Society. I focus on the intersection between law and technology with an emphasis on digital policies. I submit these comments in a personal capacity representing only my own views.

 2.     I have been active participant in the policy development of Bill C-11, including appearances on the bill as an expert witness before the House of Commons Standing Committee on Canadian Heritage and the Senate Standing Committee on Transport and Communications. 

3.     On May 29, 2023, I submitted my views to the Commission in response to a request to extend the deadline for this proceeding as well as two others associated with Bill C-11. I endorsed the widely supported recommendation that the deadline be extended to July 28, 2023, though noted that I thought the better approach would be to wait until the government’s policy direction on Bill C-11 had been finalized.

4.     On June 9, 2023, the Commission rejected the request to extend the deadline for this proceeding, leaving one remaining working day to file a submission.

5.     In the Commission’s decision of June 9, 2023, it indicated that this proceeding “is industry focused and relatively narrow in scope.” The Commission’s emphasis on “industry focus” can also be found on its webpage that indicates that it will be of primary interest to Internet streaming services and television and radio broadcasters.

6.     While it is no doubt true that this proceeding will be of interest to those stakeholders, to narrowcast the importance of registration requirements and associated exemptions represents a fundamental misunderstanding of the issues raised by Bill C-11 and establishes a dangerous precedent that suggests the Commission views the interests of individual Canadians as inconsequential or irrelevant.

7.     This proceeding on proposed registration requirements for online streaming services and a proposed exemption order for those regulations could have significant implications for the availability of international streaming services within the Canadian market. If regulatory requirements are viewed as too onerous by foreign online streaming services, they may make the business decision to cease providing service in Canada, resulting in reduced consumer choice. This issue may be particularly acute for smaller, niche services depending on the threshold established in the proposed exemption order.

8.     Even if the service chooses to comply and remain in the Canadian market, it may pass along the associated regulatory costs to consumers, potentially resulting in higher consumer pricing and less affordable services.

9.     The policy decision associated with this proceeding therefore has enormous consumer and cultural implications that extend far beyond the narrow group of stakeholders identified by the Commission. 

10.  The government’s draft policy direction, published in the Canada Gazette on June 10, 2023, also has direct implications for this proceeding. The draft version of the direction, which is currently the subject of a 45-day public comment period, specifically directs the Commission at Section 8(c) to “respect audience choice and, where possible, increase the options available.” As noted above, this proceeding could result in reduced audience choice should some streaming services choose to block or exit the Canadian market in light of the regulatory requirements and established thresholds.

11.  The draft policy direction also directs the Commission at Section 8(f) to  “consider Canadian or foreign regulatory regimes that affect online undertakings.” This suggests that the Canadian registration requirements and exemption must consider similar regulatory frameworks around the world. 

12.  The draft policy direction is still in draft form and could change following the public comment period. It is for this reason that I believe Canadians would have been better served had the Commission waited until the policy direction is finalized.

13.  In this proceeding, the Commission seeks comment on a wide range of issues including the appropriate exemption threshold level, scope of data collection, and public disclosure requirements. Each of these issues may implicate consumer choice, affordability, and require comparative analysis with other jurisdictions.

14.  Given the Commission’s rejection of a deadline extension, I am unable to provide evidence-based responses to these questions at this time. I should note that this is not for lack of best efforts. My hope was that the Commission would establish reasonable deadlines to allow for my participation in this proceeding. Indeed, I have been working together with research assistants to engage in comparative research to better understand the global regulatory landscape and properly situate the proposed Canadian regulations within that framework. That research is not yet complete.

15.  The Commission stated in its June 9, 2023 decision rejecting an extension that it was not persuaded that filing deadlines for the three consultations required alignment. Yet it is hard to think of a Bill C-11 policy issue that requires more alignment than the identification of appropriate regulatory thresholds. Moreover, the practical reality is that giving Canadians, individual experts, or under-resourced public interest organizations a single workday to submit their views on a complex regulatory issue is entirely unrealistic and seemingly designed to curtail their participation. I know that it has in my case, liming this submission to concerns regarding the Commission’s narrow framing of those interested in the issue and effective exclusion of broad public participation.

16.  In my view, this represents an abdication of the Commission’s responsibility to act in the public interest, suggests a lack of understanding or interest in the consumer implications of online streaming policies, and establishes a deeply troubling precedent in the Bill C-11 consultative process.