Talk TV Hearing Post-Mortem – Now What

If you’ve been following along with the two week CRTC hearing then like me you’ve probably hit your broadband data cap (12 hours of hearing on Sept 10^th just killed me) and you’re wondering if it was worth it. What happens now? What did we get out of it?

First, it’s not really over yet. A number of stakeholders had very specific undertakings to deliver more information by 5pm PST September 19th. Some of it will be on the public record while other information will be held to be confidential (if requested and if the CRTC agrees). We will see what Google decides to do about their undertakings as like Netflix, they may not want to acknowledge the CRTC’s jurisdiction. What data is delivered will trickle out over the next few days.

By now you’ve heard about the fireworks between Netflix and the CRTC and you are on one side or another of the debate [If you haven’t heard – Netflix was asked to provide lots of information and wanted a better confidentiality guarantee than other stakeholders get and the Chair of the CRTC got really angry at the request for special treatment]. Netflix has until 5pm Monday to deliver their copious orders (they would not take undertakings so were given orders) to produce information. If they give the data they will be confirming CRTC jurisdiction (at least in some eyes). If they do not they will be escalating the conflict and we have no idea what the CRTC will do next.

The next stage is that intervenors can submit Replies to the CRTC by October 3^rd. Replies can be responses to things that other intervenors said or clarifications of what was said by an intervenor but should not be new evidence.

Then the record will be complete and the CRTC will deliberate. As the Chair said in his final address, the Commission will make its decision based on the evidence presented, in accordance with the CRTC’s governing statute. Why is this important? Three times during the hearing members of the government made statements about what they would not allow to happen coming out of this hearing. The public, including some journalists, seem to think that the government can interfere with an ongoing hearing in that way. The Chair was trying to remind everyone that is not the case. The government may take steps after the decision is rendered but not before.  Without a doubt this could influence their decision-making but the process must be respected.

I doubt that there is any willingness to extend a financial contribution to foreign OTT but the Commission seemed very interested in what Netflix could do to promote Canadian programming within the general recommendations (and not just as a separate genre), which it apparently is doing in France and Netherlands.  Even that however, would be exercising their jurisdiction to regulate Netflix, which the Commission has stated they have had all along by issuing the Exemption Order.  Netflix may see it otherwise.

However, I will not make any predictions about what the decision will look like or even when we will see it. Big policy hearings can take months to process the decision on all of the issues. Going into the hearing I will admit that it seemed like the Commission was likely to stick pretty close to its proposed framework but aspects of it were consistently called into question. For example, the proposal to eliminate simsub from events like the Superbowl was almost universally rejected by broadcasters and producers, given the importance of both revenue and the promotion slot to Canadian programming.   I think the record will show no agreement on what would happen with a pick and pay world or how much it will cost consumers so I could not guess which option we will end up with.

A few conversations surprised me. The Commission spent more time than in any hearing that I can recall talking about children’s programming. Unfortunately the focus was too often on how you define ‘children’ and not enough on ensuring that all Canadian children have access to Canadian programming. If there will be some kind of skinny basic then either conventional channels have to air children’s, the skinny basic has to include at least one children’s service or the CRTC has to decide to limit support to the preschool educational content on CBC and educational broadcasters. I hope the decision is not the last one but we’ll see.

The other one that surprised me was the idea that removing daytime exhibition requirements would free up money to be spent in prime time. Broadcasters like their daytime programming and were loathe to give it up. That will not be the solution. I was not surprised by the very loud objection to getting rid of local transmitters as a way to pay for local television. OTA advocates tend to be very passionate about their cause.

Blais was very interested in a proposal from E One to encourage big budget co-ventures with the U.S. with looser Canadian content regulations but higher rate of return.  This fit right into what appears to be Blais’ personal interest in a greater use of the CRTC co-venture rules.  It was unfortunate that E One was on the last day so that the creative community could not explain how shows with U.S. studio partners may make more money but do use less Canadian talent and tell fewer Canadian stories. Those kinds of shows can be made today within the rules but it appears that E One would like the financial support that is currently limited to more Canadian productions.

A public hearing like this by its nature is an opportunity for a wide variety of stakeholders to put forward their positions and it is the Commission’s job to assess the often competing evidence and make a decision.   A lot of effort was put into this hearing so while some are hoping for the status quo, many are hoping it was worth it and we will get significant regulatory change that will help the Canadian broadcasting system survive the coming shifts in the media landscape.