The CRTC renews CBC’s TV licenses with new rules for Indigenous and diverse programming and fewer for local news and other CanCon programming.

July 7, 2022

With all eyes fixed upon the CRTC’s ruling in the Lamour “mot d’n” complaint against Radio Canada, the Commission’s June 22nd release of its long awaited renewal of the CBC’s license has flown under the radar.

The Commission’s five-year re-set of the CBC’s license conditions —implementing Parliament’s mandate in section 3 of the Broadcasting Act— had some catching up to do since its previous renewal in 2013.

The social foundation underneath the CBC’s programming priority of “national consciousness and identity” in section 3(m)(vi) of the Broadcasting Act has shifted since 2013, especially the mainstream awakening to the recommendations of the Truth and Reconciliation Commission on Indigenous peoples and the consciousness-raising surge of the Black Lives Matter movement.

Also since the 2013 renewal we have witnessed a revolution in video distribution technologies. These current license renewal proceedings begun in 2019 were the Commission’s first opportunity to apply regulatory changes to the CBC that it implemented in 2016 and 2017 for private sector TV broadcasters.

The signature change in this license renewal is a dedicated spending envelope (“Canadian Programming Expenditure”) for television content made by producers from Indigenous peoples and from Canadian racialized, disabled, and LGBTQ equity-seeking communities.

No such legally binding programming priorities existed previously, either as exhibition quotas or budget lines. Prior to this renewal, the only regulatory requirement for diversity in CBC programming expenditure was for Official Language Minority Communities (OLMC), meaning anglophones in Quebec and francophones outside it.

Because the Commission chose to shy away from defining the genre content of programming priorities and preferred to link spending requirements to whom is making the programming — independent producers from the priority communities— the Commission turned to population demographics to measure the slices of the CBC’s budget pie.

In the end the Commission fixed the spending on independent producers thus:

• Overall, 35% of all Canadian programming dollars in CBC’s English network must go to producers from Indigenous, diverse, and Official Language Minority communities. The corresponding figure on the French network is 15% (and the CRTC explains the difference).

• The CBC can bank a 50% intersectionality credit (meaning one dollar of actual spending will satisfy $1.50 of its expenditure target) if that producer is a woman.

• Within the overall 35% and 15% spending requirements, an 8% (English) and 1.8% (French) spending sub-envelope is carved out for Indigenous producers, the gap explained by the demographics of languages spoken within Indigenous communities.

• The existing spending requirement of 6% for OLMCs is also included as a carve out.

These are big regulatory moves, perhaps a zero to sixty moment for the CBC and by the end of its five year renewal the difference in programming priorities should be quite noticeable.

However that regulatory spree is the exception to the rule in the 2022 license renewal: otherwise the Commission was looking to reduce its governance of CBC programming decisions.

It did so by deleting a bevy of 2013 binding license conditions, reducing many of them to non-binding “expectations” and “encouragements,” or outright eliminating them, in the name of “outcomes” which in this particular instance seems to be regulatory-speak for “we trust you.”

The centrepiece in the new regulatory scheme is the Commission setting a license condition that the CBC spend at least 85% of programming dollars on any genre of Canadian content on either its traditional linear television platform, which until now has been regulated by detailed conditions of license, or its Internet platforms like CBC Gem, which in this pre Bill C-11 world has never been regulated by the Commission.

The thinking behind the merged two-platform expenditure target is to incent the CBC’s shift from linear to Internet.

The thinking behind eliminating most genre-specific programming rules around news, children’s shows, dramas and documentaries in favour of an overarching 85% “CanCon” expenditure minimum is that exhibition rules (minimum hours of scheduled programming) are less useful for satisfying television audiences that increasingly expect on-demand rather than scheduled shows. The Commission’s rule of thumb for shedding exhibition quotas from the linear platform is whether or not the CBC has been comfortably exceeding them in the past.

The resulting deregulation looks like the following (for a more encyclopedic summary you can’t do better than Steve Faguy’s analysis in Cartt.ca, but if the paywall stops you the CRTC ruling contains its own summary):

• Exhibition minimums for prime time evening programming on linear television are eliminated;

• Exhibition minimums for “programs of national interest” (PNI) (i.e. Canadian stories in dramas and documentaries) are also eliminated, although they are replaced with conditions of license for spending minimums that align with the CBC’s current budgeting.

• Exhibition minimums for French-language children’s programming are also removed on the grounds that Radio Canada has far exceeded the 2013 minimums (English children’s programming has only just kept up, so the CBC keeps its license conditions).

• Most controversially, all minimum programming obligations on local stations in Vancouver, Calgary, Edmonton, Toronto, Ottawa and Montréal are deleted and are not replaced by minimum spending requirements or by any network-wide “news” spending obligation (the CBC’s English and French national news services are regulated separately from local stations). This is sharply different from the belt-and-suspenders regulations the Commission imposed in 2017 on private sector broadcasters who were obliged to keep their exhibition minimums for local stations and spend a minimum of 11% of network-wide revenue on local news.

The Commission says this deregulation is guardrailed by its expansion of the CBC’s obligations to report programming data that should confirm they are spending the overall 85% on CanCon; that they are meeting their new programming obligations for Indigenous and diverse communities as well as PNI spending; and that at least keeps tabs on how they are spending on local news and children’s.

Even further, the Commission has dictated specific survey questions it wants the CBC to use in gathering qualitative data on audience satisfaction over the next five years. In a move that some find odd, the Commission is not especially concerned about consumption data on audience attention and market share.

The 271-page ruling by the Commission was a split decision, with two out of five commissioners filing dissents. That included Broadcasting Vice Chair Caroline Simard who also dissented in the “mot d’n” case and has now left the Commission.

Still, the majority of Commissioners will feel they have continued down a measured path of television deregulation begun several years ago under the previous Chair J.P. Blais in his “Let’s Talk TV” regulatory re-set for private sector broadcasters.

If there is a continuity of approach, it certainly includes a Commission philosophy that it isn’t the regulator’s job to substitute its own wisdom for broadcaster programming decisions provided the broadcaster is doing a reasonable job operating within the broad policy mandate of the Act.

The dissenting Commissioners couldn’t disagree more and in the next post we will look at what they said.