CRTC decides mobile TV belongs under 1999’s exemption order

The CRTC has dispelled the cloud of uncertainty hanging over mobile television services since their Canadian debut last year, determining that such offerings do indeed fall under the New Media Exemption Order of 1999. "The commission considers that exempting mobile television services promotes innovation in delivering television to Canadians, without impacting the ability of licensed broadcasters to fulfill their obligations under the Broadcasting Act," CRTC chairman Charles Dalfen said in a release announcing the decision. The commission began studying the applicability of the order to mobile broadcasting in August last year – several months after Rogers Wireless began broadcasting TV content to handsets in April – when it put out a call for comments on a regulatory framework governing the services (Public Notice 1999-118). The consultation solicited feedback as to whether or not the services were covered by the 1999 exemption order. Additionally, the commission asked respondents to state their thoughts on whether a new exemption order should be issued if they deem the services to not be covered by the old order and, if so, what the scope of any new order should be. Most of the opposition has come from Canada’s private broadcasters, led by the Canadian Association of Broadcasters (CAB), who fear that such services will compete with traditional broadcast television. The CAB filed its comments on the matter on September 12, 2005, and noted that none of the wireless providers offering mobile broadcasting at that time disputed the fact that their services were a form of broadcast; therefore, argued the CAB, they should be subject to the Broadcasting Act. "The CAB submits that it would be inappropriate at this time to adopt a regulatory framework that would allow mobile broadcasting distribution services to operate without any conditions or requirements," the body said in its filing. However, the Canadian Wireless Telecommunications Association also submitted its comments on the same day, in which it made an argument for mobile TV being no different than multimedia content on the Web: both used the public Internet to travel between destinations for the most part, with the "last mile" possibly being a wireless connection in the case of other types of Internet traffic, just as it is with mobile TV. The CAB shot back, saying mobile TV services didn’t comply with the CRTC’s own definition of the Internet as set out in its 1999 policy notice on new media (Public Notice 1999-84) and the New Media Exemption Order itself, an argument that ultimately failed to win over the commission. CAB spokesperson Kevin Desjardins declined to comment on the decision by press time, saying that the association had yet to consult with its members on the decision. In a media release, the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA) referred to the CRTC’s decision as "yet another in a series of ill-conceived decisions to avoid licensing broadcasters that use new technologies." Said ACTRA executive director Stephen Waddell in the announcement: "This decision allows our country’s public broadcasting system to be flooded with yet more US programming….Saying new broadcasting technologies are exempt from the Broadcasting Act is not a cultural benefit to Canadians." In an interview with Canadian New Media sister publication Report on Wireless, CWTA president and CEO Peter Barnes said the decision "recognizes the competitive nature of the market and the fact that...regulation here wouldn’t have helped." Far from the injurious effects predicted by broadcasters and production unions, however, Barnes said the new freedom granted to mobile broadcasters will actually help build television audiences by giving them an opportunity to preview on-air content before it’s televised. "These are services that will actually be helpful to broadcasters because will basically get another opportunity to attract viewers," he says. "People will be snacking on the mobile device for a minute or two or three, but if they want to look at TV for half an hour or 90 minutes, they’re going to go to a TV set." Jeffrey Elliott, president and CEO of Mississauga ON-based Bite TV – which bills itself as Canada’s first interactive television channel – says the CRTC’s decision gives even established broadcasters the freedom to embrace new distribution channels for their content. "I just think it’s a great opportunity for everybody – the independents like us, and the conglomerates like Bell Globemedia – to get in there and experiment and try and so on," he says, adding that for the larger firms dominating Canada’s media landscape, "it’s their opportunity to step up to the plate and help push the agenda of this along." Although Bite TV does have a Category 2 specialty channel broadcast licence and airs on cable and DTH, it is also moving heavily into mobile content delivery with the imminent launch of its Bite To Go streaming video service on the Telus Mobility network. The broadcaster already has a downloadable video clip service available through Rogers Wireless, Telus Mobility and Bell Mobility, but Elliott notes the majority of its business is still done through traditional broadcasting distribution channels. "Right now, the majority of our revenue comes on the television side, so I would look at it as we’re experimenting with a mobile platform with programming that we have at our disposal right now," he says. Despite that reliance on traditional broadcasting, Elliott offers nothing but support for the CRTC’s decision. "I think it’s great that they’re taking the same approach to the delivery of television over telephones as they did with the Internet, because there’s still a ton of exploratory work to go on," he says, but adds that the ever-accelerating pace of innovation and change around content delivery – a recognition of which is at the heart of the ruling – will definitely have an impact on those broadcasters who choose to stay with the status quo. "There’s no doubt whatsoever though, in the long run, in my mind anyway, that it’s going to be disruptive to the way that television is traditionally done," Elliott says of mobile broadcasting. "You’ve got a whole new generation of 21-year-olds that don’t look at the TV in the corner of the family room as that golden box anymore. That is the generation that’s moving forward, and there’s nothing you can do to stop that." Elliott points to developments such as the rise of user-generated content through such sites as Youtube and Jibjab as well as the growing interest in building free municipal Wi-Fi networks as the future direction for even more decentralized and diverse means of content distribution. "These are all the new things we’re going to see, and it’s just starting right now," he says. "That’s why I think keeping it unregulated is incredibly important for this period." Epitome Pictures Inc. executive VP and Stohn Hay LLP partner Stephen Stohn says the decision is positive simply because it puts to rest nearly seven years of uncertainty surrounding mobile broadcasting services. "The good news is that there’s clarity, and knowing what the rules are is really important," he says. However, he notes the commission uses language in its decision, such as the decision not to review the New Media Exemption Order at this time, which hints at the potentially temporary nature of the exemption from regulation. "The indication there is that looking at the entire new media, including mobile, is something that the CRTC wants to do," he says. However, Stohn cautions that the CRTC might easily find itself overwhelmed by the pace of technological innovation before it can revisit the 1999 order. "The technology may become so rampant that alternate delivery systems that are really not regulated by the CRTC could suddenly be really significantly competing with licensed undertakings, and that may happen much sooner than any of us have been thinking," he says, pointing to Burbank CA-based ABC Inc.’s decision last week to offer an free online simulcast of future episodes of its hit show Desperate Housewives, cutting Apple Computer Inc.’s Web content store iTunes out of the loop. ITunes currently sells episodes of the show for US$1.99 each. While Canadian producers will likely play a key role in providing content for these new mobile television services, Stohn also expresses fears that without regulatory guidance, such services will eventually sink below the levels of Canadian content prescribed for traditional TV broadcasters. "If mobile broadcasting is allowed and there’s no regulation, does that mean people can now do mobile broadcasts without any Canadian content on them?" he asks. For now, Stohn agrees that traditional media firms looking to offer a complementary mobile TV service would likely adapt their existing broadcast offerings to fit mobile platforms, if for no other reason than cost. However, he adds, "in the not-too-distant future…we could bring in American services or whatever and then all of a sudden the whole goals of Canadian content would be subverted."

CRTC decides mobile TV belongs under 1999’s exemption order

Broadcast | April 17, 2006

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