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By: Geneviève A. Bonin

On January 15, 2008, the Canadian Radio-television and Telecommunications Commission (CRTC) made announcements to follow up on its Diversity of Voices hearings that were held in Gatineau, Québec in September 2007. Among the policies made public, the Commission conditionally approved the Journalistic Independence Code which is an industry code proposed by the Canadian Broadcast Standards Council (CBSC) to help ensure broadcasters maintain a diversity of editorial voices in circumstances where a broadcaster owns a newspaper and a television or radio station in the same market (CRTC, 2008, CRTC establishes a new approach to media ownership). The CRTC conditionally approved the Code on the basis that the CBSC determine a minimum requirement of journalists to be part of the adjudication panel and that it formalize a process to select panel members. The panel will consist of a minimum of 10 and a maximum of 16 adjudicators, half of which are or have been employed by a Canadian broadcasting organization or related organizations (CBSC website) . The CBSC has stated it will be the only one to determine the appointment of panel adjudicators and ensure their independence and qualifications. According to the organization’s Director of Policy, a nominating committee will be set up to choose the people who will be part of the adjudication panel. Moving forward this committee will also be responsible for choosing members for all CBSC panels as this will increase the level of transparency of the nomination process.

Including the Journalistic Independence Code, the CBSC administers seven codes – the Canadian Association of Broadcasters (CAB) violence code, code of ethics and equitable portrayal code; the Radio Television News Directors Association of Canada Code of Ethics; the Industry code of programming standards and practices governing pay, pay-per-view and video-on-demand services; as well as the pay television and pay-per-view programming code regarding violence. On average, the organization receives 2000 complaints per year filed against members of the CAB who are considered to have contravened the laws and regulations of the CRTC or the aforementioned codes (Director of Policy, CBSC, 2009). As such, the CBSC has been rendering decisions about these complaints since 1991. Recently, however, the CRTC asked the CBSC if it would look into a particular case which is out of its regular purview. It asked the organization if it would consider analyzing the more than 200 complaints filed against the French CBC for its broadcast of the 2008 Bye Bye. The show is a humoristic retrospect of the year’s events and has been popular with the public since its debut in 1968 (CBSC website ). However, the humor in the 2008 edition did not sit well with all audience members. The CBSC agreed to take on the challenge and in its decision of March 17, 2009, it determined that the public broadcaster had gone too far and was in breech of several codes, regulations and conditions of licence (see Canadian Broadcast Standards Council, Quebec Regional Panel, SRC re Bye Bye 2008 ).

Regardless of the outcome, the CRTC must render its own decision and it is likely that it will uphold that of the CBSC for several reasons. Of note, the CBSC has a history of dealing with these types of cases and has built a substantial body of jurisprudence that has gained recognition both in Canada and abroad. But, hasn’t the CRTC done the same thing you ask? And why should we trust an industry led organization? For one thing, the CRTC does not provide decisions in as much detail as the CBSC. It also does not make the decisions available in over 40 languages. Furthermore, the adjudication committees that review important decisions include people from most stakeholder groups. And, since 1997, in the majority of cases, the CBSC rules against the broadcasters (Director of Policy, CBSC, 2009). The bottom line here, however, is what the CRTC intended by letting the CBSC render its version of the Bye Bye decision. To most observers in the industry, it seems like a sign the CRTC may be on the path to outsourcing this part of its operations, but the reasons for doing so still remain unknown. Perhaps, the CRTC has recognized the effectiveness and quality of the CBSC’s decision-making process or maybe it needs to share some of its workload. For the moment, we await the CRTC’s decision and remain hopeful it will shed some light on the reasons behind its request.     

By: Gregory Taylor

 March 9, 2009

Gambling and pornography are not the only industries making money on the internet – it appears the world of sports, in particular hockey, is achieving what has thus far eluded most other broadcasters: a way to monetize the new media world.  

The sixth of eight scheduled days of the CRTC hearings into new media broadcasting included revealing submissions by the Association of Canadian Advertisers and an afternoon panel of sports broadcaster The Score paired with the National Hockey League. 

The ACA’s Bob Reaume identified advertising as “a primary resource” and “the essential economic underpinning to the (Canadian broadcasting) system”.  The ACA supported the idea that professionally-produced content on the web is indeed broadcasting and added its support to extending the 1999 regulatory exemption order.   A common refrain at these hearings has been that advertising money on-line is a trickle of the income generated in traditional broadcasting.  The ACA recognized that video advertising is currently less than 1% of on-line advertising spending, much lower than other countries, but believes that is about to change. 

The National Commercial Agreement, reached with actors unions and other creative groups at the end of 2008, establishes a working agreement for on-line commercials which the ACA believes will result in a blossoming of professional quality video commercials on Canadian websites.  This may not be music to the ears to those annoyed by on-line advertising but will sound sweet to cash-starved content producers, and may have a profound affect for the future of Canadian new media.   The difference may be apparent soon: in an exchange with Commissioner Stephen Simpson, Reaume stated “this is the year” for on-line video advertising production in Canada.

The Score and the National Hockey League were a rare tale of financial success in new media, in particular mobile media and internet.  In its case to keep new media regulation-free, the Score (an independent yet profitable cable sports channel) noted 10% of its ad revenue is in new media, and the number is rising.  The Score frequently emphasized the need to stop ISPs from being gatekeepers on the internet via preferential treatment for certain content providers.  As their counsel Grant Buchanan observed “someone gets marginalized when someone gets prioritized”.  The Score was told this was more appropriate for the CRTC Net Neutrality hearings planned for this coming summer.

NHL representative John Tortora echoed the hands-off position of the Score.  He presented a healthy picture of the NHL’s on-line development, citing a 15% growth in web site traffic in the past year.  The NHL uses the website to stream games not otherwise available and connect to various NHL team sites, including lucrative merchandising outlets. The NHL credited the lack of regulation as fostering “greater choice and efficiency” within the system. 

Expect the call for laissez-faire to reach crescendo levels on Tuesday, March 10 when ISP providers Rogers, Shaw, Cogeco, and the Canadian Cable Alliance speak before the CRTC.

gregory.taylor2@mail.mcgill.ca  
 

CBC 2.0 at the CRTC Hearings on New Media

By: Gregory Taylor

Thursday, 26 February 2009

CBC/Radio Canada stood before the CRTC to present their case concerning new media, on a day when the Canada’s national public broadcaster was itself in the news over potential revenue shortfalls and the looming possibility of cuts to services. Steven Guiton, the CBC’s Chief Regulatory Officer, accompanied by four other CBC officials, attempted to convince the CRTC that Internet Service Providers have indeed become broadcasting distributors, and as such, should be required to contribute to program funding.  

There is a familiarity to CBC presentations at CRTC hearings: the main issue will inevitably come around to funding and the CRTC Chair will eventually remind the CBC that such matters are beyond the regulator’s jurisdiction. At one point in the hearings, CRTC commissioner Timothy Denton asked if the CBC had considered on-air fundraising drives like PBS in the United States.  The CBC politely answered “no”, though added they saw no legal barriers.

The on-line world has hit the CBC particularly hard.  There is an increased demand for new on-line content from the public broadcaster, especially in areas like digital archives, yet there is no increase in parliamentary funding to accompany this expanded role.  An extra $60 million per year, awarded in 2001 by then-Heritage Minister Shiela Copps, is set to expire this year and Finance Minister Jim Flaherty said on Wednesday that CBC already gets "substantial financing" and should not expect more.  

The hybrid nature of Canada’s public broadcaster (it reports to both citizens and advertisers) is particularly evident in relation to new media. The CBC inevitably faces comparisons to the BBC and its aggressive move toward on-line programming and extensive digital archives in the UK, yet the BBC receives stable, long-term funding and does not depend upon advertising revenues.  The CBC works within very different parameters and views an ISP levy as a potential source of revenue for new on-line material.

The CBC emphasized to the CRTC that new media allow for dialogue with Canadians in ways never possible in traditional broadcasting, yet consistent with the CBC’s mandate as a national public broadcaster.  According to the CBC panel, during the recent visit by President Barack Obama, 16, 000 Canadians were engaged in exchanges on CBC journalist blogs during the day.  

The CBC sees no new parliamentary funding on is horizon and on-line advertising has simply failed to materialize. Weak ad revenues for on-line content are not a product of the current economic recession.  Advertising on the internet thus far has proven lucrative for search engines and classified sites, not for content providers.  This is not to say internet content is not being viewed (Newsworld’s on-line streaming capacity was close to capacity during the hours of the Obama visit), the industry has simply thus far been unable to find a way to monetize the on-line product.    The CBC is developing new media content and promoting Canadian content by offering programs on new services such as Apple’s iTunes, where producers share in any extra revenues.   

Like on-line ads, iTunes sales have not proven adequate to cover the costs of producing new media content.  The CBC remains upbeat: “hopefully when the money flows, we’ll have an engaged audience”.  

Expect ISPs to present strong arguments that any new revenues should not be flowing from their bottom line.

gregory.taylor2@mail.mcgill.ca

By: Bram Abramson, McCarthy Tétrault LLP

 A founding member of the Montréal Media Policy Group (MMPG), Bram Abramson is now an associate in the Business Law Group at McCarthy Tétrault LLP in Toronto. His practice focuses on telecommunications, broadcasting, media, and information technology matters.

Prior to his legal studies, Mr. Abramson worked as senior financial analyst for the Canadian Radio-television and Telecommunications Commission; as senior analyst and research director for a prominent telecom industry research firm based in Washington, DC; and as virtual conference director for an international NGO based in Montréal. Mr. Abramson has published articles in journals such as Telecommunication Policy, Television & New Media and Media, Culture & Society.

By: Gregory Taylor

Of the two major decisions announced by the Canadian Radio-Television and Telecommunications Commission (CRTC) on January 15, there is little doubt which one was the lead story. The majority of news focused on limitations placed upon future corporate media expansion so that no single company can own television, radio and newspapers in a given market, and no company can own more than 45% of the total television audience in Canada. This was headline news for both the CBC (who had championed cross-media ownership restrictions at the September public hearings) and the Globe and Mail, who ran a scathing Jan. 16 editorial on the decision (the Globe’s parent company, CTVGlobeMedia, as Canada’s largest media corporation, arguably has the most to lose under the new rules).

However, the ‘second’ announcement of the day also has major implications for the way in which Canadians receive information in an age where communication is increasingly viewed as a commodity, and not a public good. The Diversity of Voices decision may have placed limitations upon the continued expansion of big media; however, the Journalistic Independence Code (the Code) granted private broadcasters increased autonomy to regulate their news departments.

The Journalistic Independence Code was not an initiative of the CRTC. The Code was originally proposed by the Canadian Broadcast Standards Council (CBSC) in 2002, with a final version submitted in January of 2007. The CBSC is a private, self-regulatory organization, launched in 1989, which oversees the administration of four codes (Canadian Association of Broadcasters Code of Ethics, the Sex Role Portrayal Code, the Violence Code and the Radio Television News Directors Association of Canada Code of Ethics) created by members of the Canadian Association of Broadcasters (CAB), an organization representing Canada’s private broadcasters. Allowing private broadcasters to police themselves is part of what the CRTC sees as a move toward “light touch” regulation. The CBSC is a clear example of the media industry trying to establish itself as a “mature” industry, no longer in need of government regulatory oversight. In the Jan 15 decision, the CRTC commends “the quality of the work accomplished by the CBSC”.

In the public hearings prior to the CRTC decision, support for expanding the role of the CBSC via the proposed Code was by no means unanimous. While Rogers, CanWest and CTV sang the praises of the Code, the strongest opposition came from journalists themselves.

At the hearings, Peter Murdoch, Vice President of Media for the Communications, Energy and Paperworkers Union of Canada, emphatically stated “In terms of the proposed code under the CBSC, the answer from the journalistic community is a resounding "no".” He went on to add “Journalists want a code, and they must get busy developing their own, with input from a variety of stakeholders, but certainly they do not want one run, even at a distance, by their employers”.

Murdoch’s concerns were echoed by Mary Agnes Welch, president of the Canadian Association of Journalists: “We are worried it does little to limit content sharing among newspapers and television stations owned by the same company, and we have reservations about the ability of broadcasters to self police.”

In the end, the CRTC did not share Murdoch’s reservations. The now CRTC-approved Code offers media corporations the valuable financial prize of requiring no structural separation of news gathering activities. This is something journalists had fought against, fearing further layoffs as corporations consolidate previously separate news departments.

The CRTC sided with the journalists in their critique of the proposed adjudication panels, which offered only a token voice to journalists in the very decisions which would shape their industry. As a condition of acceptance of the Code, the CRTC instructed the CBSC to have a minimum requirement of professional journalists on all adjudication panels.

The now-accepted Code requires all members to maintain “separate and distinct” management structures and editorial boards (not news-gathering resources) and establishes the Journalistic Independence Panel to address complaints.

Click here to view the CRTC decision and the Journalistic Independence Code.