Category Archives: CRTC

The CRTC’s Wireline Wholesale Decision and the ISP Levy

I bet you didn’t think those two were related. If you’re primarily interested in broadcast policy (as I am) you probably didn’t even read the CRTC’s Wireline Wholesale Decision. I will freely admit that telecomm feels like another world and another language to me so I don’t tend to read the decisions and rely instead on the summaries in the news. Then Sasha Boersma pointed out to me Mark Goldberg’s tweet about Commissioner Raj Shoan’s dissent to the decision and I got excited and I just need to share that.

First, the decision. Wholesale wireline services are the part of their network that major telecommunications companies (e.g. Rogers, Bell) have to make available to small independent services (e.g. TekSavvy, VMedia) at a regulated fee to allow the independents to provide competitive voice, broadcast and internet services to their customers. The hearing was to review the policy framework to ensure that it contributed to competition and choice. You can read the press release here for a brief summary – the major issues are expanding the network that must be made available to include fibre and disaggregating the services so that an independent doesn’t have to take all services if they only want, for example, Internet.

Commissioner Shoan’s dissent wasn’t about those two main points but about the decision’s narrow focus on the Internet as a provider of alpha-numeric data and the missed opportunity to revamp policy, or take a first step towards revamping policy in recognition that broadcasting and telecommunications are no longer separate silos. Shoan’s position is that so much evidence was provided by intervenors that broadcasting is now part of the services that the independent providers offer to customers that the Broadcasting Act should have also applied. The world is rapidly evolving to one where there is only one pipe to the home providing all of our communications services and that is not reflected in the policy framework:

“In essence, under the current legislative framework, the Internet, through market forces, consumer use, and industry development, is evolving from a telecommunications service into a broadcasting service. The implications of this evolution are profound for not only the Commission’s regulatory frameworks, but all Canadians and the public interest.”

Commissioner Shoan breaks down Internet services into really three types of services:

  • licensed or exempt IPTV broadcasting (television channels delivered over the Internet by companies like VMedia and Zazeen)
  • exempt broadcasting delivered over the Internet (OTT services like Netflix)
  • non-broadcast Internet (websites, email etc.)

IPTV was a hot topic at the hearing with many independents looking for access to fibre to be able to provide customers with an IPTV offering. They need the bandwidth and speed. IPTV is broadcasting. Shoan’s analysis is that the Commission cannot use the Telecommunications Act to provide access to broadcasting. The Broadcasting Act must apply, specifically s. 9(1)(f):

s.9(1) Subject to this Part, the Commission may, in furtherance of its objects,

(f) require any licensee to obtain the approval of the Commission before entering into any contract with a telecommunications common carrier for the distribution of programming directly to the public using the facilities of that common carrier;

The exempt broadcasting services are exempted by the Broadcasting Act under the Digital Media Exemption Order. S. 28 of the Telecommunications Act provides an obligation on the Commission to regulate the transmission of programming over telecommunications services to guard against undue preference or unjust discrimination (i.e. incumbents favouring their services over the independents). Shoan sees a missed opportunity here to identify what would be undue preference or unjust discrimination “as high-speed networks rapidly transition to becoming predominantly video distribution platforms”. This was an opportunity to create a framework to address problems before they occur rather than after.

Now back to the ISP levy. When the CRTC reviewed the New Media Exemption Order (as it was then called) in 2009 there was a call from creator groups for the CRTC to impose an ‘ISP levy’ on ISPs who were increasingly providing consumers with access to programming without making any contribution to the creation of that programming. The levy would go to fund more programming and replace lost BDU revenues to the CMF and the other independent production funds as consumers increasingly cut or shave the cord. During the hearing the BDUs challenged the CRTC’s jurisdiction to impose such a levy and the CRTC referred the question of jurisdiction to the Federal Court of Appeal.

The Federal Court of Appeal decided in 2010 that ISPs were not broadcasters and therefore the CRTC did not have jurisdiction under the Broadcasting Act over the ISPs (and could therefore not impose a levy under that Act). The decision was appealed by the creator groups (ACTRA, CMPA, DGC, and WGC) to the Supreme Court of Canada, who agreed in 2012 based on their interpretation of the facts that ISPs were not broadcast distribution undertakings [EDIT: earlier version said ‘broadcasting’ but it is more accurate to say broadcast distribution undertakings – sorry for any confusion]. They are merely passive conduits that ‘take no part in the selection, origination, or packaging of content’.  You can find the history of the Digital Media Exemption Order and the Federal Court of Appeal decision here and the Supreme Court decision here.

Now we have a CRTC hearing where independent ISPs looked for access to fibre so that they could provide BROADCASTING services. Shoan’s dissent makes a very good case for applying the Broadcasting Act to ISPs.  [EDIT:  It has also been pointed out to me that there have been some changes in how ISPs operate including how they promote the video content they carry that could justify a re-examination of the case and to what extent they really are only passive conduits.  As well, the growth of IPTV renders the question of whether ISPs are broadcast distribution undertakings moot at least for those services.]  I’m not a telecomm lawyer so there could be flaws in the argument that I can’t see. Perhaps telecomm and broadcast people should have a conversation because Shoan’s analysis undermines the factual underpinning of the Supreme Court’s decision. If anyone is up to the cost of another reference, it could be time to challenge the Supreme Court decision or (and this is less expensive) encourage the CRTC to take a bold step toward creating a regulatory framework that better reflects the services being offered to Canadians and ensures that Canadians will continue to have the choice to watch Canadian programming on those services.

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Digital Canada 150 2.0 – Have They Gotten It Right Yet? Not so much.

I was going to break down the differences between Digital Canada 150 (released April 4, 2014) and Digital Canada 150 2.0 (released today) but it’s kind of ridiculous. Very little has changed in the past year. It is still more of a ‘look what we did including a bunch of stuff that has nothing to do with a national digital strategy but sounds good’ than a plan for ensuring that Canada and all Canadians are digitally literate, part of the digital economy, using the tools and enjoying the content.

Yay – the government connected more rural Canadians to broadband but still no mention of ensuring affordable access to broadband for Canadians regardless of where they live. Increasingly, digital literacy and access are essential elements to exercise of Canadian citizenship and this continued omission supports the digital divide between those who can exercise their citizenship and those who cannot.  [Note – contrast that with the Digital Argentina law of 2014 that, among other things, is aimed at ensuring fair access of all citizens to telecommunications including the Internet.  Under that law the government of Argentina can set the rates for Internet access to ensure affordable access for all.  Just saying.]

Yay – the CRTC (which is an arm’s length tribunal so can’t really be part of the government’s strategy unless it isn’t that arm’s length) has instituted unbundling like the government said it would. No mention of the fact that we really won’t know the consequences of that decision for consumers and for broadcasters until it is implemented in 2016 or explanation of how that relates to a digital strategy.

Yay – the @Canada twitter handle exercises digital diplomacy. I dare you – go check out that twitter handle.

Screenshot 2015-07-15 14.22.22

Yay – the government created digital content through the NFB, funding the Canada Book Fund and the Canada Music Fund and digitizing publications for Library and Archives Canada. They actually have funded a great deal of digital content through the Canada Media Fund and their budget cuts have forced the CBC to be more innovative in using digital platforms but for some reason these are accomplishments the government does not want to brag about. I get the CBC point (it’s hard to brag about what someone has had to do when you slashed their budget) but CMF?? [They do describe Telefilm Canada as an audio-visual industry success story so I do wonder if someone at Industry Canada got confused and thinks Telefilm and the CMF are the same thing and doesn’t realize that Telefilm only funds features.]

The report does cover a number of other issues (I’m not going to even touch the reference to Bill C-51 as an example of Internet Safety) but those are of greatest relevance to an audio-visual industry. BUT. What the audio-visual industry called for in the 2010 consultations was vision and a plan to ensure that all Canadians had access to digital platforms and the choice to enjoy Canadian content when they got there. It asked for an overhaul of the various silo’d funding programs to have a coordinated strategy to fund single platform and multi-platform content in a digital world. It asked for funding mechanisms to ensure that Canadian content continued to be created even as business models and technology evolved.  It asked for training programs that ensured that emerging and more established talent had the skills needed to create and exploit content.

For a quick refresher on the agonizing pace of waiting for a National Digital Strategy that included content, see my post on the release of Digital Canada 150 on April 4, 2014 in response to the Industry Canada consultation in 2010.

So, we’re still waiting for some vision.

Where Are They Now (wonk version)?

[As originally posted to TV, Eh?]

So a few weeks ago I tweeted that I had gotten lost on Google for a couple of hours because it had been suggested to me that ‘someone’ should report on where former CRTC Commissioners are now.   It’s like a wonky version of Zap2It’s ‘Degrassi: TNG Season 1 Cast – Where Are They Now?’ post. So here’s my Zap2It/Buzzfeed style update on more recent former CRTC Commissioners. As you can see, some leveraged their CRTC experience to move on to interesting new positions, some went back to what they had been doing before and many are consultants (a very honourable profession in my opinion). Some are consulting more than others. The further back you get the harder it is to find info online so I called it quits at Charles Dalfen. [Note – if anyone, including a former Commissioner, would like to update their listing, please feel free to contact me and I will edit.]

UPDATE:

Tom Pentefountas (2011 – 2015)

Pentefountas left five months before the end of his term to join Stingray Digital as Senior Vice-President of Sales, Europe, Middle East, Africa and Asia, working out of their London, UK office.  

Louise Poirier (2008 – 2013)

Poirier continues as Chair of the Gatineau Sport Development Board (Conseil de Dévelopment du Sport de Gatineau) http://www.sportgatineau.ca She had been a Gatineau city councilor before the Commission.

Suzanne Lamarre (2008 – 2013)

Prior to the Commission Lamarre had a long career at the CBC as an engineer and a lawyer. She has now shifted to the consulting world as a Strategy and Regulatory Affairs Advisor. According to her LinkedIn page she is keeping very busy advising and teaching telecommunications and broadcasting regulation.

Timothy Denton (2008 – 2013)

Prior to his stint at the Commission, Denton was a consultant and executive focused on all things Internet and he has returned to that focus as Chair of the Internet Society of Canada and Principal of The Windermere Group (telecomm, broadcasting and internet law and policy consulting practice). He is also blogging at www.tmdenton.com

Marc Patrone (2008 – 2013)

Prior to the Commission, Patrone had a long career as a reporter at CTV Atlantic. He returned to the news first at Sun News Network as director of news for Western Operations until it folded and now freelance, writing articles and posting videos for Ezra Levant’s Rebel Media blog and YouTube channel.

Len Katz (2007 – 2012)

Katz appears to be fully retired after he left the Commission due to health issues after a short term as interim Chair of the Commission and four years as Vice-Chair of Telecommunications.

Michel Morin (2007- 2012)

Morin was a journalist and news executive with Radio-Canada prior to the Commission. He has returned to the news as a Journalist for TVA Nouvelles.

Konrad von Finckenstein (2007 – 2012)

After a distinguished career as a Federal Court Judge and before that Chair of the Competition Bureau, von Finckenstein spent a term as the Chair of the Commission. He is now an independent arbitrator for commercial disputes at JAMS, a global provider of commercial arbitrators and a Senior Fellow at the independent think tank C.D. Howe Institute.

Helen Ray Del Val (2005 – 2008)

Ray Del Val was a commercial and telecommunications lawyer prior to her three year term as the BC Regional Commissioner. She is now Chair of BC’s Financial Institutions Commission and of the Community Care and Assisted Living Appeal Board.

Michel Arpin (2005 – 2010)

After a lengthy career primarily in radio broadcasting, Arpin was the Commission’s Vice-Chair Broadcasting for five years. After his term he spent one year as a lecturer at Université de Montréal and is now consulting.

Elizabeth Duncan (2005 – 2014)

Duncan served two terms as Commissioner after a career in regional cable. She appears to now be retired.

Rita Cugini (2005 – 2012)

Cugini also served two terms on the Commission. She currently is active as a strategic planning and media consultant with clients like APTN, Blue Ant, the Competition Bureau and the Ontario Ministry of Culture and Tourism. In 2013, along with Trina McQueen, Cugini conducted an independent review of the game Pipe Trouble commissioned by TVO, to see if it complied with TVO’s Programming Standards.

Richard French (2005 – 2007)

After two years as Vice-Chair Telecommunications, French left the CRTC and now holds the CN Paul M. Tellier Chair on Business and Public Policy at University of Ottawa.

Joan Pennefather (1998 – 2007)

After two terms with the CRTC, Pennefather is now a mediator with the Mediation Centre of Southern Ontario and a senior associate with the Institute on Governance.   She also sits on a number of boards.

Stuart Langford (1998-2007)

Langford spent two terms at the CRTC but seems to have fallen off the map at least as far as Google is concerned. Prior to the CRTC he practiced law, worked as a political staffer and wrote crime novels.

Andrée Noel (1998-2007)

Prior to her nine years with the CRTC, Noel was an executive with a telecommunications company and a publishing company. Noel is now a broadcast and telecommunications consultant and the National Chair of the Canadian Broadcast Standards Council.

Charles Dalfen (2002-2006)

After his term as Chair of the CRTC, Dalfen was counsel at Tory’s, the firm he practiced with prior to his term at the CRTC. Dalfen died May 26, 2009 from a heart attack.

Thank you to Bram Abramson for being way better than a hive mind and directing me to the Privy Council Office page that aggregates Commissioner appointments.

My 15 Minutes of Fame

So apparently there aren’t a lot of independent policy types out there willing to talk to media about their opinions.  I’ve never done TV before (well, one little CHCH lunch time news interview back when I was producing a youth research website – barely counts) but I had two appearances this past week to talk about the CRTC and Talk TV.  I was on TVO’s The Agenda with John Doyle (yes, our difference of opinion about the Golden Age of TV in Canada came up but we also agreed on a few other things such as how much a shame it was that CBC had cancelled “Strange Empire”) and then interviewed for a piece on The National on the evolution of the CRTC.   I got to explain the DMEO in the National piece – without using acronyms!

My fingers are crossed that somehow these appearances lead to paying work but either way it was more fun than I thought it would be.

Talk TV – Pick and Pay

I know, you’re saying ‘what, another post on pick and pay’?  I just want to direct you to my post on the topic over at TV, Eh? where I outline the many variables that I believe will have to play out before we really know the impact of the CRTC’s pick and pay decision.

I also have one other point that didn’t fit into the post but has been bothering me ever since.   In the CRTC’s decision on pick and pay it confirms that the current process for authorizing non-Canadian services will be maintained.  In other words, non-Canadian services will only be authorized if they do not compete with a Canadian pay or specialty service.  Remember – the previous week the Talk TV decision on content got rid of genre protection and nature of service descriptions.  So how exactly will it be determined if a service is competing when the Canadian service has no set definition?  What happens if the Canadian service decides to morph into something else? And then back again?

So, if the History Channel decides to completely abandon history programming and focus on pawn shops and outlaw bikers does that mean the U.S. History channel will be able to be authorized in Canada?  But what if History changes its mind and decides to go back to history programming?  This is my confusion.  It would be great if at some point the CRTC could explain how exactly this is going to work.

Talk TV – Content Decision

In case you missed it, I wrote three blog posts about last week’s Talk TV decision over on TV, Eh?.  The first is an overview of issues while the second drilled down into the new Hybrid VOD licence and the third focused on the potential impact on the independent production sector.  There have been quite a few other good overviews of the decision.  I recommend the Globe and Mail’s Kate Taylor, Cartt (subscription) and Carleton Professor Dwayne Winseck.

With the pick and pay part of Talk TV expected Thursday March 19th, you can expect more blogging and a lot more chatter on the twitterverse.

Talk TV – Building and Repairing Bridges

There were three Talk TV decisions released today on OTA television, simsub and mobile broadcasting.  I blogged about it for TV, Eh? over here.  They are mostly consumer-facing decisions but I am a little concerned about the impact that the no simsub for the Superbowl decision will have on future Bell Media revenues, and therefore its expenditures on Canadian programming.  However, as the infographic shows, we have a lot more decisions to come so it’s hard to say what the impact will really be till we’ve seen them all.

Update:  For a very thorough review of the issues and potential negative impact of the Superbowl Simsub decision, please read Michael Hennessy here.