All posts by Kelly Lynne Ashton

Kelly Lynne has over twenty years of experience on the business side of Canadian film, television and digital media as an entertainment lawyer. She took a slight departure to produce children’s digital media. When it was time for something new, moved back to business affairs but now in film, television and digital media. More recently she discovered that all along her true calling was as a Canadian media policy wonk. Now she assists clients with research projects, policy and strategy development, government and government agency submissions and social media consulting.

Talk TV – Early Hearing Update

If you are at all following Canadian television in mainstream or social media or read TV, Eh? regularly then you know that this week the CRTC started its huge Talk TV public hearing (hearing singular – not plural). It’s huge for two reasons – it covers a wide range of topics but it also has the potential to dramatically change the Canadian broadcasting system.

In my last post on the topic I shared some of the proposals that the CRTC had issued two weeks ago as a way of trying to limit the discussion. They belatedly seemed to realize they were trying to tackle too much. It didn’t really work. Stakeholders are reacting to the proposals but still talking about what they want to talk about so it has still been a huge discussion.

There are a few themes that have come out of the discussion so far. The Chair of the CRTC, Jean-Pierre Blais, wants to hear big picture discussion and not self-serving ‘this is what would be best for us’ and he isn’t getting it. Every stakeholder so far to varying degrees has presented fairly self-serving arguments. This isn’t surprising because each stakeholder’s job is to represent their company or their members’ interests. However, they should also be aware of competing interests and try to present a balanced argument and that isn’t happening.

For example, the Competition Bureau, a government agency tasked with ensuring that “Canadian businesses and consumers prosper in a competitive and innovative marketplace”, argued that the only relevant concern was reducing prices for consumers without any recognition that the CRTC had cultural obligations under the Broadcasting Act. It surprised me that a government body required to uphold legislation would advise another one to ignore its legislation.

Another theme is that no one really knows how consumers will behave if the CRTC implements either of its ‘pick and pay’ choices (Option A being an all Canadian basic with Option B being all-Canadian plus any other services cable and satellite companies want to add but capped at $20, $25 or $30). There are many studies out there but none of them are on point (e.g. the U.S. has a different regulatory system and the Quebec market is pretty different from the rest of Canada).   Without being able to predict consumer behaviour it is pretty hard to make recommendations taking into consideration consequences but stakeholders are trying.

We heard from Bell and others that either option of pick and pay would be the apocalypse. With less drama, concerns were expressed that prices for individual services would have to be higher and therefore consumers would drop many of the services they have now and those services would fail. Corus made the unusual argument that pick and pay is just too complicated for us and we’d be paralyzed by all that choice. We are just not smart enough to handle pick and pay?

Did anyone talk about anything else other than pick and pay? At moments it seemed like no but there have been some stakeholders actually talking about Canadian television programming and the impact that some of these proposals would have on it. Strangely, after years of being ignored, Blais has been focusing on children’s programming.

The CMPA pointed out in its submission that the PNI policy allows broadcasters to shift their expenditure obligation to drama to the detriment of children’s, features and documentaries. Given that private conventional broadcasters do not air children’s programming and public broadcasters are focusing on preschool, there would be few opportunities to watch a full range of children’s programming in a skinny basic. While the Shaw Rocket Fund would like to see conventional services air children’s programming again, Corus would like to see specialty kids services (which they happen to own) in skinny basic.

Even more strangely, Blais chose to argue with the Shaw Rocket Fund about the definition of children’s programming – how could they define it as 17 and under when you can drive at 16? I myself would not argue about kids media with Annabel Slaight (founder of Owl Magazines, Owl TV and chair of the Shaw Rocket Fund) but Blais seemed to be consciously trying to limit CRTC support to the preschool market, abandoning school age and teen age to a choice of either commercial children’s programming (i.e. YTV or Family Channel) or adult programming (e.g. Teen Mom). You can tell what I think about that from the way that I phrased that sentence.

The CRTC tried to limit the conversation about regulating OTT (which is currently exempted under the Digital Media Exemption Order) by not including them in the proposals. The topic inevitably came up though with Google appearing (at the CRTC’s request) on the first day. The Google argument was basically – we have tons of Canadian programming on YouTube so there’s no need for regulation. The problem is that, not being experienced with the CRTC or Blais, they made broad statements about the volume of Canadian content on YouTube but did not have the stats to back up the statements. So Blais asked Google to back up their statements and submit facts and methodology before the end of the hearing on September 19th.

Google has taken no position on whether they are subject to the CRTC. There are competing arguments as to that jurisdiction. Observers are now watching to see how Google handles this request – will they provide any information and tacitly acknowledge jurisdiction or will this be the line they draw and take the position that the CRTC does not have jurisdiction to compel the disclosure.

One last note for now. I think it surprised a few of the content stakeholders to hear the Commission suggest that the proposal to remove daytime Canadian programming exhibition requirements was intended to shift expenditure requirements to prime time programming. Broadcasters can stop producing or commissioning daytime talk shows (which have relatively lower audiences) and put more money into PNI or other prime time programming like Masterchef Canada. Bell, who airs The Marilyn Denis Show and The Social, didn’t think much of that proposal. It should be noted that it would be easy for broadcasters to spend more of their CPE on news, sports and reality so there should not be an assumption that this proposal would benefit PNI.

Conversations are ongoing. If you want to share your thoughts join in on Twitter under the hashtag #CRTC or #TalkTV or the CRTC’s discussion board.


TalkTV – Have Your Say, Again

You may have heard about the CRTC’s Talk TV consultation.  It’s been a multi-part consultation that first started with an online discussion forum where the public was asked for their thoughts on issues related to Canadian television.  The public and industry groups were also encouraged to conduct Flash! conferences to talk about Canadian television and send in reports to the CRTC.

The CRTC took all of that information and floated a few proposals to the public and asked them to answer a survey.  Finally (we thought), they announced a public hearing and solicited submissions on 80 specific questions to be followed by an oral public hearing starting September 8, 2014.  [If you’re interested, summaries of the other phases of consultations and the public notices can all be found on the CRTC TalkTV microsite.]

Today the CRTC added in another public consultation and provided more proposals for the public and stakeholders to consider and respond to.  They re-opened the online discussion forum and they would like you, yes you, to read the working document and share your thoughts.  The discussion forum will stay open from today until the last day of the hearing and close on September 19, 2014.  This will allow you to respond to things said during the hearing as well as to the working document.  That is a very interesting option, particularly for those who don’t live tweet hearings (I tend to have very immediate tweet responses to things said during hearings).

I believe that the Commission’s attempt to look at the entire television landscape is laudable but too much for one hearing.  Having received all of the submissions it looks like they might have come to the same conclusion.  While maintaining that anyone presenting at the hearing can bring up any topic they wish (though hopefully a relevant one – please no Value For Signal), they are trying to focus the discussion under the headings of pick and pay, the relationship between cable and satellite companies and broadcasters, Canadian programming and specifically local programming.  They would also like comments on the specific proposals including implementation schedule and how proposed regulation can be adaptable to future change.

Some of the proposals are wonky but several would have a direct impact on audiences and creators.  Your input is important regardless of which side of the screen you sit on.  And which screen.  This CRTC has been known to read into the record written submissions from the public.  So please share your thoughts.

A few of the issues:

Pick and pay:  In addition to the proposal contained in the public notice (a small all-Canadian basic), the CRTC is floating another option.  Under that scenario, cable and satellite companies would be able to add in any other services that they wish as long as the small basic has the price of $20 per month, $25 per month or $30 per month.  The benefit of this is that the cable and satellite companies can add in ABC, CBS, NBC, FOX and PBS if they want but still need to keep the basic package small.

After the small basic, consumers will be able to either pay for only the specialties they want, put together their own packages or buy prebuilt packages.

Simultaneous substitution:  There are two options, either no more simsub or remove simsub from live events such as the Superbowl or Oscars.  It’s interesting that these are even proposed when so many stakeholders pointed out to the Commission the importance of simsub revenue to broadcasters and therefore the amount they have to spend on Canadian programming.

Preponderance:  Two options again – either Canadians receive a preponderance of Canadian services or they are offered a preponderance of Canadian services (and could pick only the US ones after small basic if they wanted).

Redefining Broadcasting Revenues:  Currently there are expenditure obligations that are calculated as a percentage of a broadcaster’s revenues from broadcast (CPE or Canadian Programming Expenditure).  The proposal is to include revenue from programs offered online in the base for calculation.  Broadcasters would then also be able to count expenditures from programming created for online platforms as part of their CPE.  The CRTC sees this as a way to encourage made for digital content but it is also a huge potential first step towards looking at the broadcasting system as a whole and not its regulated and unregulated parts.

Programs of National Interest:  This expenditure requirement, which obligates broadcasters to spend money on drama, docs and Canadian award shows, will be maintained and children’s programming will be included.  There has been a decline in commissioning original children’s programming and this is the CRTC’s response.  Expect to see discussion about whether this proposal will be effective or whether there also needs to be CPE sub-quotas for children’s programming (as well as feature films and long form documentaries).

Programming requirements:  An interesting proposal is to eliminate exhibition requirements during the day but maintain them for prime time.  This will mean no incentive for Canadian daytime talk shows, particularly on conventional stations that can also simulcast US daytime talk shows or soaps.  Do people care?

Genre protection:  The proposal is to eliminate genre protection (which says that there can only be one service per genre, so only one science fiction channel, history channel etc) and nature of service definitions.  If this goes through then the Commission will overturn its recent decision on OLN and you’ll get your Whisker Wars back because services will be able to morph into anything that they want, whenever they want.  Good thing?

There are a number of other issues on local programming, community programming, Official Language Minorities, accessibility, set top boxes, vertical integration rules and a few other issues probably of less interest to TV, eh? readers.  The big topic missing from the proposals is any attempt to include OTT (foreign or domestic) within regulation.  I doubt that will stop it from being a topic of discussion.  The proposed implementation schedule is to have it all in place by December 15, 2015.

I encourage you to go online and have your say.  If you do not like any of the proposals share your thoughts.  If you think any of them are good ideas, let the CRTC know.

And stay tuned – this is going to be an interesting hearing.

I will leave the CRTC with the last word:

Screenshot 2014-08-21 17.23.01




No More “Whisker Wars” on OLN


Recently the CRTC renewed the several licences owned by Rogers. I won’t get into all the wonky details here but one aspect of the decision impacts on Canadian programming. And it’s entertaining.

OLN is a specialty service that was licensed to provide exclusively “programs that deal with outdoor recreation, conservation, wilderness and adventure”.  On two previous occasions Rogers has tried to amend its conditions of licence so that it could broadcast more Canadian drama, more U.S. drama, cartoons and to remove the word ‘exclusively’. Rogers had limited success (they got cartoons) because the Commission felt that their requests would undermine the nature of service for which they were licensed. “Lost” reruns do not qualify as outdoor adventure.

Instead of US reruns (they have FX Canada now) Rogers started broadcasting the kind of reality shows that you see on Discovery and increasingly on History – “Baggage Battles”, “Storage Wars”, “Ghost Hunters”, “Operation Repo” and my personal favourite “Whisker Wars” (competitive facial hair – seriously). Rogers put most of the benefits money that they are required to spend for the acquisition of the CITY stations and OLN into “The Liquidator”, a series about Jeff Schwarz, a guy in Vancouver who buys and sells unwanted merchandise.

You might be a fan of “Whisker Wars” and “The Liquidator” but you would also have to agree that they aren’t outdoor adventure shows. The CRTC felt the same way and gave Rogers until January 31, 2015 to clean up their schedule and report on how OLN is now broadcasting shows consistent with their nature of service.

If we end up in some variation of a pick and pay universe, it will be increasingly important for consumers to know what a service is before they buy it. Enforced nature of service means that a broadcaster can’t entice a subscriber with one concept and then change it because they think that audiences have shifted or another form of programming is cheaper. For creators it is important to know what a broadcaster stands for now and for years to come when they are pitching proposals.

For everyone enforced natures of service work towards ensuring that there is real choice of programming in the broadcast system and broadcasters aren’t all chasing the same audience.


Why should I care about the CRTC?

I have been asked to write about regulatory activity for the TV, eh? audience. You might ask yourself – “why should I care about regulations – I am a fan/creator/broadcaster/distributor and I just want to know about Canadian TV”?

Without government policies, in their infinite and constantly evolving complexity, there would be no Canadian media. None. In particular, the Broadcasting Act and its stewards the CRTC ensure that we have a Canadian-owned broadcasting system and that each element of the system (primarily broadcasters and cable and satellite companies) contributes to the creation and presentation of Canadian programming.

Without these rules and regulations we would all be watching Masterchef and Under the Dome and other US shows on a US network. Well, we are anyway … but we have the choice to watch Canadian programming that reflects our world, our stories and how we see ourselves.

Nurtured, our talent pool has created terrific programming that has been extremely popular with audiences – Amazing Race Canada was the top show in Canada last week and during this summer season Rookie Blue and The Listener are both averaging over a million viewers each episode.

We also have the choice to watch high quality documentaries, children’s programming and Canadian feature films because of the regulatory support of the Broadcasting Act and policies and funding through Heritage Canada.

It is, however, an imperfect system. The CRTC is always trying to tweak the balance between consumers, creators and citizens and between broadcasters, cable companies and producers. The media world is constantly evolving with new technologies, new business models, new consumption patterns and new players. The system is constantly in tension and sometimes, often, you — the lover or creator of Canadian television — is forgotten.

My job here will be to translate regulatory activity (mostly CRTC but also changes in funding at Canada Media Fund or the independent funds or changes in policies at Canadian Heritage) and explain the impact on Canadian programming. Will there be more or less, what kind, should I be upset or excited about it?

Acronyms will unfortunately creep in. I have a decoder on my personal blog.

Coming up:  The big regulatory news is the TalkTV hearing which will take place September 8 – 19th, 2014. We could expect a decision on that hearing possibly before the end of the calendar year and then the following year we will likely have a number of follow up hearings on specific issues.