CRTC approves annual digital media survey, elects to keep data secret

After long consultation, the CRTC on Wednesday approved the establishment of an annual digital media survey. Under the regulations, all digital media broadcast undertakings (DMBUs) operating in whole or in part in Canada will be required to file information on their activities. The regime had its genesis in 2018 when Cabinet asked the regulator for a report on future broadcasting distribution models. In 2019, the commission issued a notice of consultation arising from the report. Initially it sought only to assess the data of digital holdings of existing broadcasters. But several interveners said that foreign DMBUs should also be subject to CRTC data collection. The commission agreed and expanded the focus of its inquiry. The CRTC maintains that it has jurisdiction over foreign-based DMBUs offering services in Canada through the exemption order of digital media broadcast undertakings, known as the DMEO. The Forum for Research and Policy in Communications (FPRC) argued that it did not have that right. The regulator can only issue mandatory directives to licensees, FPRC told the commission, and the companies based outside Canada are not subject to CRTC licensing. The commission found that it has the power to grant licences or exemptions and thus all DMBUs should be subject to its mandatory orders. “Regarding the terms and conditions of exemption, the Commission can adopt any terms and conditions so long as it deems them appropriate,” Wednesday’s CRTC statement said. “This is in keeping with the broad discretion accorded under the Act to regulate and supervise the broadcasting industry. Indeed, paragraph 4 of the DMEO requires that the undertaking ‘submit such information regarding the undertaking’s activities in broadcasting in digital media, and such other information that is required by the Commission in order to monitor the development of broadcasting in digital media, at such time in such form, as requested by the Commission from time to time.’ The Commission retains wide discretion in determining the scope of any request for information, the frequency of the reporting requirement and the form of the response.” The foreign-based DMBUs called for the commission to wait until revisions to the Broadcasting Act were enshrined in law. That legislation died in the Senate when last September’s election was called; a new version of the bill is now before the House of Commons as Bill C-11. According to the CRTC’s 2020 Communications Monitoring Report, non-Canadian DMBUs take most of the $5 billion in revenues generated by the sector. Exempting them from the reporting survey would present an inaccurate picture of the situation in Canadian broadcasting, the regulator noted. The proposed survey will be administered on an undertaking-by-undertaking basis, a suggestion which drew much criticism from interveners such as the Canadian Association of Broadcasters (CAB), the CBC, Rogers Communications Inc. and Shaw Communications Inc. It would be difficult for DBMUs to differentiate between their platforms, they maintained. The commission rejected this plea, saying different accounting practices and differences in corporate structure do not hinder the collection of data for the Annual Broadcasting Survey. The CRTC has established thresholds for those required to participate in the survey. Audio services do not have to file unless they generate at least $25 million in revenue. The corresponding amount for audiovisual services is $50 million. Several interveners claimed the requirement for financial information would impose an administrative burden on them. The regulator dismissed this assertion. “The Commission is not currently equipped with sufficient information to evaluate and quantify, from a financial perspective, how the Canadian broadcasting system has been affected by digital media, and how it is adapting in light of such technological innovation, yet Canadians increasingly rely on the Internet to discover and consume music, entertainment, news and information. As such, the information to be collected through the survey form is increasingly essential to continuing to meet the policy objectives of the Act” the CRTC stated. The commission rejected calls from the creative community for detailed breakdowns on such matters as music playlists and language requirements. Requiring the filing of such data would be a burden the CRTC seeks to avoid, it said. There was a similar dispute on how often information should be filed. Creative groups called for quarterly reports while industry groups opted for annual reporting. In the end, the CRTC sided with the industry and said it will only require annual reports, although it left the door open to change that policy if needed. A proposal by the CAB for staggered reporting between Canadian and foreign DMBUs was rejected by the commission. The regulator said that because the consultations have been going on for two years, affected broadcasters have had plenty of notice of what is required of them. Accordingly the first survey will cover the 2021-2022 broadcast season. Documentation must be filed by June 30 of this year. Subsequent responses are to be filed on Nov. 30 of each year. Following the release of the commission statement, FPRC tweeted that the tight timelines do not give sufficient time for an appeal to the Federal Court of Appeal or to the Cabinet. There was lively discussion on whether the data should be aggregated and published by the CRTC. Creative groups argued in favour of such an approach while industry groups opposed it. Two creative sector unions, ACTRA and Unifor, suggested that the information should be disaggregated after seven years and published. The commission sided with the industry and the data will be kept confidential. “The Commission is of the view that publishing collected data by undertaking or by ownership group could influence the competitive positions of the survey respondents by providing insight into the value of specific digital rights,” the CRTC wrote. –Reporting by Paul Park at ppark@thewirereport.ca and editing by Michael Lee-Murphy at mleemurphy@thewirereport.ca

CRTC approves annual digital media survey, elects to keep data secret

News | 02/23/2022 4:59 pm EST

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