The sound and fury over the Bill continues to revolve around whether the CRTC will require algorithm-driven recommendations of Canadian videos and music on social media platforms.
It’s been well established that social media users — ranging from major movie studios to individual YouTubers— won’t be directly regulated as businesses, only YouTube will be. But their programs might be if they are sufficiently ‘commercial,’ a line drawing exercise delegated to the CRTC.
The point of our post is that the uncertainty over the eventual CRTC outcome is driving all the political noise and that more certainty might calm things down.
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The Australian government’s 2021 News Media Bargaining Fund set the precedent for Canada’s Online News Act, Bill C-18. Now the Australians are following Canada’s lead on Bill C-11 with their own version of a Netflix Bill.
Still in policy development, the Australians are tossing around ideas of how the global streamers should contribute to local Australian content.
One of the settled issues is that global streamers won’t be invited to pay their fair share by purchasing programming rights for sports (Time Warner’s Paramount Plus just acquired rights to Australian football). The same with news.
An unsettled issue is how the streamers should meet Australian-content targets: by making their own dramas, documentaries and children’s programming, or by funding Australian media companies to do it?
The film production community wants the big streamers to commission their own made-in-Australia content, but the broadcasters just want the streamers to write a cheque and have no interest in having to bid against the web giants for broadcast rights to Australian shows.
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Last night the Governor-General conferred Royal Assent upon the Online Streaming Act minutes after the Senate approved it and so public commentary on the Bill has crested in mainstream and social media. Mind you, commentary has been cresting for some time now. And given that we are expecting a cabinet Policy Directive to the CRTC to begin implementation hearings, the wave will roll on for some months yet.
Media coverage —including the Globe and Mail‘s excellent summary— has identified the fuel source for the never-ending flame of controversy.
It’s ‘ambiguity,’ ambiguity about the detailed outcome of whatever discoverability measures the CRTC will take with respect to algorithm-driven recommendations of Canadian content on social media platforms, i.e. YouTube and TikTok.
Specifically which Canadian ‘user-generated’ programs will be included or exempted from the scheme to push Canadian programs to Canadian viewers and listeners on those platforms?
It’s the uncertainty that’s making everyone mad, and I don’t mean ‘angry’ mad either.
For two years now, the opponents of Bill C-11 have been filling the void of uncertainty with worst-case scenarios. The Conservatives have injected a conspiracy theory: that the CRTC will impose pro-government ranking priorities on YouTube and flood the zone with Liberal propaganda.
Even journalists get carried away. Veteran (and Canadian) reporter Paul Vieira told his American audience in the Wall Street Journal yesterday that under Bill C-11 ‘if a person in Canada searched on YouTube, the results would display videos mostly from Canadian artists ahead of foreign or U.S.-made content.’
Mostly?
Ahead of foreign or US-made content?
There is no evidence that will be the outcome. The Heritage Minister Pablo Rodriguez has never suggested it.
On the other hand the Minister insists on repeating the nostrum that ‘platforms are in, users are out.’ That means citizen uploaders won’t be regulated as broadcasters and be required to make ‘Canadian’ videos. But the recommendation ranking of a YouTubers’ video might be regulated. We’ll have to see what the arm’s length regulator CRTC decides and whether it impacts Canadian YouTubers. That’s a lot of ambiguity to live with.
We are probably looking at a high and low water mark for CRTC outcomes.
On one hand, former CRTC chair Ian Scott opined to the Heritage Committee last year that social media platforms could satisfy demands for promoting Canadian content without ever touching their recommendation algorithms.
At the other end of the spectrum of outcomes, representatives of the music industry in Québec want a dramatic increase in the rock-bottom consumption of French-language songs on Spotify and YouTube. That seems difficult to achieve without a major tweak to recommendation algorithms for IP addresses in Québec and minority language communities.
Here are some comforting thoughts.
First, the blank canvass of unknown regulatory outcomes will get filled in fairly quickly. The CRTC may set some parameters in its Notice of Consultation for public hearings. Also, when participants in the CRTC’s public hearings file their initial representations, the focus may narrow further.
Second, the legislation gives the CRTC the authority to make YouTube tweak its algorithms in order to get quantifiable results on promoting Canadian programs. But the legislation denies the CRTC the authority to dictate any particular change to algorithms. That leaves the algorithm design in the hands of the platforms.
Third, the CRTC may choose not to pursue a ‘one-size fits all’ policy on discoverability. There may be more intrusive expectations for French language music and none at all for news commentary or home renovation videos.
Expect the CRTC to make generous use of its well-used exemption authority to leave the vast majority of citizen and solo artist videos untouched for the foreseeable future.
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On Friday morning MediaPolicy published its recommendation to the Prime Minister that he concede that Pierre Poilievre has succeeded in making the CBC into a wedge issue, and to meet that challenge.
An hour later, Twitter’s Elon Musk repealed his ‘government funded’ label for CBC, walking back the calculated insult to CBC’s editorial independence as encouraged by Poilievre.
An hour after that, Abacus published a poll suggesting that public opinion supportive of ‘defund the CBC’ has broken out from the Conservative base and sits at 45%.
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On April 20th Google’s senior American executives Kent Walker and Richard Gingras appeared before Heritage Committee MPs after ignoring their previous summons in March to explain their news blocking activity (the Globe and Mail story is here).
Walker and Gingras were exceedingly polite, which just goes to show you they do understand Canada after all. Although they never said ‘sorry.’
Heritage MPs wanted a number of questions answered and confessions made about Google’s five-week news blocking demonstration, fired as a warning shot across Parliament’s bow over Bill C-18, the Online News Act. It was unusual to see the happy warriors Conservative Rachael Thomas and Liberal Chris Bittle team up for a little hazing.
For their part, Walker and Gingras delivered a polished performance trying to turn the meeting into a discussion of why Canadian MPs ought to walk away from the legislation they approved in December.
To summarize Google’s position:
Yes, they could confirm that as the Search Engine for 95% of Canadians, Google blocked news to 1.1 million Canadians as a ‘test’ for a permanent block of 34 million Canadians should Bill C-18 become law.
Yes, they might follow through on the threat.
No, they won’t say how much money they would put behind their proposal to fund Canadian journalism on a voluntary basis if C-18 was withdrawn. (On this point Alberta MP Martin Shields stole the show).
No, they won’t disclose the Canadian activist groups they are secretly funding in an alliance against Bills C-11 and C-18 (to their credit, some organizations have always acknowledged the funding).
Yes, Google says they believe that C-18 will shortchange the small Canadian news outlets that Google itself has ignored in a series of voluntary compensation arrangements made mostly with larger newsrooms.
Yes, Google played ball in Australia when it introduced the forerunner of Bill C-18 and made approximately $130 million worth of voluntary agreements with almost all Australian news outlets, large and small, but Google says Australian News Media Bargaining Code was different than Canada’s C-18 (it’s not, but that’s another blog). Correction: an earlier version of this post included Facebook’s share of the Australian settlements.
Now that Bill C-18 has passed the House of Commons —it goes to the Senate’s Communications Committee very shortly— the question arises why Google has stepped up its threats to block news even though the horse is out of the barn.
One reason: Google still frets about preventing the Australian-Canadian contagion that C-18 represents from spreading to United States Congress. An American version of Bill C-18 almost made it through Congress in December, only to fall off the table at the last moment. It appears stalled for now. If it revives, Google might pull the trigger on news blocking in Canada as an offshore demo.
The other reason for the threats is a classic bargaining stratagem.
It’s not just Canadian Parliamentarians who were supposed to notice Google’s news block. The target audience included every Canadian news outlet with whom Google will be negotiating as soon as the Senate approves Bill C-18.
Google has now made the proverbial capitalist threat ‘accept our terms or we will close the plant.’ You can’t un-say that kind of threat.
That kind of threat is not illegal in a conventional labour impasse where employers have the right to lockout and workers have the right to strike.
But a capital strike is not permitted in Bill C-18: the legislation mandates dispute resolution by binding arbitration, not the withdrawal of services. Parliament made it so because Google has a near monopoly on Search Engine distribution of news. In short, Google is obliged to play ball.
Parliamentarians pay attention: if Google figures it’s going to play hardball, we better not be playing tee-ball.
The Heritage Minister ought to have one last look at section 51 of the Act (which deals with blocking or throttling news content) and section 61 (which caps the daily fine for violating the Act at $15 million) in case a Senate amendment is in order.
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Last weekend I hyped the Canada Screen Awards broadcast on CBC on the Sunday night. This was the first year of an experimental format: a taped and curated one-hour show instead of the traditional live, two-hour award ceremony.
The next morning, the Globe’s Barry Hertz panned it. I mean, he hated it.
In some ways, it was deserved. The show was not subtle in asking Canadians to support the Canadian film and TV industry as our patriotic duty: yet host Samantha Bee anchored the show from…her home in New York City.
On the other hand, the show did a lot of things right, beginning with showering honorary awards on Hollywood-made-it Canadian talent like Simu Liu, Ryan Reynolds, and Catherine O’Hara. People watch award shows to see the stars, so you might as well include the best.
Hertz frowned on the lack of trailers from nominated films, another reason why people watch. Perhaps he gave up before the 53 minute mark (of a 62-minute show) when we finally got trailers from the films nominated for the ‘Audience Choice’ award. Three minutes of them.
A brave attempt at changing the show’s format. The old format is dying (even the Oscars’ numbers are diving, and look at the money they spend). Next year, should be better right?
By the way, here are CBC reviewer Jackson Weaver’s recommendations for new CanCon being released.
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The recommended weekend read is Tim Wu‘s mildly dystopian vision of the future of work in the age of AI.
Wu speculates that as a productivity-enhancing technology, AI could put us out of work but the other thing to expect is that it will touch off a work-speed up for humans. Didn’t e-mail raise expectations of your availability and response time?
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Last week the Globe and Mail’s Lawrence Martin wrote a convincing piece suggesting Justin Trudeau might be past his best-before date and should pack it in.
Martin’s thinking is that the PM can take pride in his achievements in eight years of government and that it isn’t going to get any easier for him, or the Liberal Party, to win the next election with him as leader.
That column was published just before Pierre Poilievre lit up the Canadian media universe by publicly inviting Twitter’s Elon Musk —-you had to wonder if the invitation was preceded by a private phone call— to disparage the CBC as ‘government funded.’
‘Government funded’ is an intended disparagement. Twitter editorial policy is to label publicly funded media as ‘government’ instead of ‘public’ if the newsrooms are not independent journalists, free from the funder’s interference.
You know what ensued. Musk gleefully complied with Poilievre’s request. In case anyone missed the point (and the bro solid to Poilievre), Musk tweeted ‘defund the CBC.’
And over the next week, the chattering class chattered, either to condemn the nuanced disparagement or soak in a bathtub of ‘whataboutism,’ pointing out of the ways in which English Canadian CBC-TV doesn’t measure up to our high expectations, or making the Prime Minister’s and the CBC’s reaction to the disparagement into the issue.
The truth is, it doesn’t matter what the chattering class thinks. After all, we are a tiny slice of the 95% of English Canadian television viewers not watching CBC or the 5% that are. It only matters what normal people think and that’s not us.
The Globe’s Konrad Yakabuski took a stab at putting his finger on CBC-TV’s reputation and opined with a little cheek:
English CBC has been consumed by questions around diversity, reconciliation and lived experience, sometimes at the risk of blurring the lines between journalism and activism. This may explain why so many Conservatives see it as being in cahoots with a Liberal government that, well, has been consumed by questions around diversity, reconciliation and lived experience.
You might dispute Yakabuski’s choice of the word ‘consumed:’ the term ‘journalistic courage’ also comes to mind. But point taken. He’s identified an important perception of CBC.
Still, CBC isn’t doing too badly in the court of public opinion of normal, non-chattering Canadians.
According to the last CBC public report, 77% of Canadians support the idea of a national public broadcaster. Seventy-six per cent say that CBC does a good job as a news provider. There was no metric for how many of Canada’s 17.2 million taxpayers approve of the job CBC is doing as a media organization, overall.
The report did say that CBC English TV captures only 4.4% of the national audience, below its 4.9% target. For French language Radio-Canada TV, the audience number is 22.6%.
Can we close that gap? No, not entirely so long as English language CBC-TV competes with American television and streaming services. But the gap between English CBC radio and the French service is much tighter: 14.1% and 23%.
What’s driving the meagre 4.4% television figure when the radio results are so much better? Too little funding for too much responsibility?Differences in regional loyalties ? Age cohorts ? Shifting CBC budget priorities for digital over legacy TV ? Programming choices ? Workplace culture ? Commercials or no commercials?
I have no idea. Neither do you unless you work there.
What we have here is a management problem. Or the shareholders’ perception that there might be one.
This is where you come in Mr. Prime Minister, assuming you are sticking around.
Take hold of this issue and be seen to do so. You gave your Heritage Minister a vaguely word mandate in 2021 to do something about the CBC. So do something.
When you hit the hustings in the next election and the Opposition is crowing ‘defund English CBC-TV and save $1 billion’ you will need a better response than you are only the landlord.
No, we don’t need a Royal Commission that takes three years to make recommendations destined to be ignored by the next government (exactly what occurred in the 1980s).
We need the landlord to take responsibility, now.
The CBC is independent of Parliament you say? Tell that to the voters at the ballot box.
So get on with it. To do the job, you will need someone who is you but isn’t you. With as much of a deadpan as I can muster for this suggestion, appoint a special rapporteur on the CBC, but one that will report back to both federal cabinet and Parliament.
And then you can be the guy who saved the CBC. Wouldn’t that be an achievement.
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Yesterday MediaPolicy.ca published our regular weekend blog post. It covered the Broadcasting Participation Fund’s approaching funding crisis.
The BPF is a non-profit organization that funds public interest advocates whom appear before the CRTC on files that are especially important to Canadian audiences and subscribers (consumer advocates for issues arising out of broadband and wireless regulation are covered by a parallel scheme under the Telecommunications Act).
The BPF issued a press release last week highlighting what has been known for a few years: its dwindling financing is captive to a series of ad hoc contributions from big media companies like Bell as a condition of the Commission approving their mergers and acquisitions. Otherwise, the BPF has no predictable source of income.
What the press release didn’t say —-and MediaPolicy.ca overlooked—- was that Bill C-11 has a fix for that situation as follows:
11.1 (1) The Commission may make regulations respecting expenditures to be made by persons carrying on broadcasting undertakings for the purposes of…
(c) supporting participation by persons, groups of persons or organizations representing the public interest in proceedings before the Commission under this Act.
The government acted upon it in Bill C-11. Contrary to MediaPolicy.ca’s previous post, the recommendation did not fall on deaf ears.
The regulation contemplated in section 11.1 (1) (c) could result in a sustainable stream of income for the BPF, or any another public interest organization, financed by ‘broadcasting undertakings.’ Under C-11, those broadcasters include not only Bell and the other big Canadian media companies, but also Netflix, Disney, YouTube and other foreign online undertakings.
A companion recommendation made by the Yale Committee was for the CRTC to develop further transparency and reporting obligations for public interest groups receiving this broadcaster-originated funding.
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This week he chased after the Elon Musk parade that began when Twitter gratuitously relabeled the US National Public Radio’s account as ‘state-affiliated media,’ later scaled down to ‘government funded media.’ It ended with Musk tweeting ‘defund NPR.’
Our Leader of the Official Opposition asked Musk to slap the same ‘government funded’ warning on the currently unlabelled CBC because, in his words, “government funded media is defined as outlets where the government provides some or all of the outlet’s funding and may have varying degrees of government involvement over editorial content.”
As every school-kid knows, our federal government has no involvement over CBC editorial content, varying or otherwise, other than to appoint the CBC President (not the Editors-in-Chief though) every five years.
Never mind, that’s not the point. The point is that there’s a mission to be accomplished, as the National Post’s Tristin Hopper reviewed blow-by-blow this week.
Putting aside political theatre, there can be no doubt that Poilievre is deadly serious about ‘defunding’ the CBC and is not merely recycling years of Conservative threats.
The Liberal government is partly to blame, but maybe not in the way you think.
Audience and popular support for the CBC-TV in English Canada has been flagging over the years, to put in politely (radio services and French-language Radio-Canada TV are doing just fine).
The Liberals responded with a $150 million boost to the Corporation’s Parliamentary grant in their 2016 budget, growing the funding to $1.2 billion per year. They made an unfulfilledpromisein the 2021 election to boost funding again and wean the Corporation off its $400 million in advertising revenue.
But other than money, the Liberals have kept a barge-pole length away from the CBC’s governance, audience strategy and its eternal identity crisis as a public broadcaster.
That’s despite another election promise, restated in the Heritage Minister’s Mandate Letter, to “update CBC/Radio-Canada’s mandate to ensure that it is meeting the needs and expectation of today’s Canadian audiences, with a unique programming that distinguishes it from private broadcasters.”
Richard Stursberg says we’re overdue to think hard about the CBC and then act upon it. A former head of English-language CBC TV, Stursberg was a bottom-line advocate of eyeballs over palettes. He has some opinions worth reading in tworecent posts.
There is also a well put together news piece from Canadian Press discussing the legal barriers in the Broadcasting Act (even without C-11 amendments) facing a government wishing to selectively defund English language services.
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Fox News proprietor Rupert Murdoch had a bad week. His dump-you-by-email jilting of his fiancé went viral. [Correction: the e-mail jilting story refers to Murdoch’s split with his fourth wife last year. He broke off his engagement this week to his new fiancé.]
Then the judge overseeing the libel suit against Fox for trumpeting false claims of election fraud sanctioned his lawyers for withholding evidence of inculpatory tape recordings.
Finally a shareholder filed suit against him for exposing the publicly traded company to liability in the libel proceedings.
And how was your week?
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Rumour has it that the Senate will vote on the revised Online Streaming Act C-11 next week.
If the Bill is approved, the National Post has explained the ensuing sequence of events beginning with Royal Assent and followed by the Heritage Minister’s Policy Directive to the CRTC instructing the Commission to hold hearings and make rulings on a list of detailed regulatory issues.
Members of the public can request to participate in CRTC hearings although the Commission is typically choosy about accepting citizen-at-large requests. Instead, the Commission has a history of funding the appearances of public interest groups that offer expertise on broadcasting matters as advocates for the Canadian audience.
The expenses for those public interest group appearances have been dispensed by the non-profit, non-governmental Broadcasting Participation Fund (BPF). The BPF was created in 2012 and its financing enabled from the Commission ordering Canadian media companies to make one-off contributions to the BPF as one of its conditions of approving corporate mergers in the industry.
But BPF administrators announced this week that cash is running out. That scenario was predicted at least three years ago by the government’s blue-ribbon panel of advisors on the creation of Bill C-11. With no prospect of replenishment, the BPF is facing the possibility of running out of money before regulatory hearings are complete on Bill C-11, the Online News Act Bill C-18, or the Liberals’ anticipated Online Harms Bill.
That same blue-ribbon committee —the authors of the 2020 ‘Yale’ Report—-recommended that Bill C-11 direct the CRTC to set up a permanent and sustainably funded public participation fund. Section 11.1(1)(c) of Bill C-11 does just that. [Note: an earlier version of this post inaccurately stated that Bill C-11 rejected that recommendation. MediaPolicy.ca has published a correction, here.]
But here’s another issue: the BPF forked out $500,000 in grants over several years to Laith Marouf’s CMAC consultancy company. As Mark Goldberg has pointed out in his Telecom Trends blog, anyone conversant with Google Search could have discovered Marouf’s racist and anti-semitic tweets as part of a standard screening process. Neither BPF nor the federal government did so.
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There is a delightful set-up piece in the Globe and Mail for the Canadian Screen Awards that airs Sunday night April 16th at 8 p.m. on CBC TV and CBC Gem.
The list includes the Canadian leads from the Hollywood streamers’ newly established true north headquarters, reminding us of both the potential and pitfalls of Bill C-11 conferring responsibilities for CanCon movies on Amazon, Netflix and the rest of the Californian crowd.
The award show is not live: it’s a curated entertainment package of clips and presentations. The winners were announced this week, so spoiler alert if you click on that story.
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Here’s the recommended read of the weekend, although it’s not just a media issue: a New York Times story about the blow-up at the Stanford University Law School over campus speech.
It’s a familiar sounding story. A conservative jurist with controversial views is given a speaking platform. He is shut down by student heckling. The law school’s associate dean for diversity, equity and inclusion tries to mediate and ends up getting suspended for her efforts. Et cetera.
It reminds me of my second year at the University of Toronto law school in 1985 when a conservative student group with invitation privileges gave a platform to the ambassador of the white supremacist state of South Africa. The University administration let the speaking engagement go ahead. It left everyone pretty raw and probably not better informed.
South African apartheid still met its ignominious end in 1991, no thanks to that student group.
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It’s become a MediaPolicy.ca habit to point out good CanCon-funded movies when they are released. In the last couple of months we’ve done well: Brother (94% Fresh on Rotten Tomatoes), BlackBerry (96%) and Viking (100%).
I have actually seen ‘Viking’ thanks to Air Canada (first 45 minutes) and Crave (second 45 minutes) and loved it. Off beat, quirky hilarious, and made for about $3 million in my guesstimate. That’s about $30,000 ‘perfresh tomato’ which is a metric we ought to be using more often.
In the interest of balance let’s note the release of another certified Canadian movie, Simulant, a sci-fi thriller starring Toronto talents Simu Liu and Robbie Amell.
It just hit theatres. There aren’t enough reviews yet to earn a Rotten Tomatoes ranking, but it’s not looking good. Chris Knight of Original Cin gave it a B-minus and observed that it was a tad derivative of the 1982 Ridley Scott classic ‘Blade Runner.’ Then Barry Hertz of the Globe ripped it and, rubbing in the salt, described it as a ‘Canadian genre cinema’ film. That wasn’t intended as a compliment. He also noted some cheap production values.
You can’t win ‘em all. Just ask IMDB about their all-time Hollywood flop list. Those are different metrics, the kind that means you’ll never have another one:
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Over at Fox News Tucker Carlson was back at it, in character and ugly about trans Americans.
The Canadian advocacy group Egale published an Open Letter to the CRTC demanding Fox be booted off Canadian cable.
If a formal complaint is filed, the CRTC will have another ‘Russia Today’ situation on its hands. Although the censorship issue isn’t identical, it’s close enough.
Unlicensed programming services like Fox News and Russia Today are carried at the pleasure of the Canadian cable companies, rubber stamped by the CRTC.
At the beginning of the Russian invasion of Ukraine in February 2022, our cable companies took the Russian propaganda service off the air on their own initiative. But Heritage Minister Pablo Rodriguez wanted to make a statement and publicly demanded the CRTC Commissioners —-whom he appoints— consider a formal ruling to confirm what the cable operators had already done.
You guessed it: the Commission complied in a ruling that was, in the view of MediaPolicy, thin on evidence. Also, since the CRTC television code’s rules on abusive comment and misinformation didn’t apply to unlicensed channels, the CRTC had to resort to a vague policy of ‘the public interest.’
A pleasing result but a bad process.
The Commission needs to develop a proper code for unlicensed channels and perhaps update the television code proscription against ‘misinformation’ for this post-Truth era we seem to be in. (A note: Bill C-11 does not extend the television code to social media uploads).
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Your recommended weekend read: Michael Coren’s reflections on fellow conservative apostate Charles Adler and what it’s like to change your mind.
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Yesterday ISED Minister François-Philippe Champagne made the least surprising federal announcement of 2023 by approving the Rogers-Shaw merger.
There is no fresh comment that this page could add to what has already been said by others or offered previously on MediaPolicy.ca regarding Rogers’ purchase of Shaw’s $21 billion in telco assets and $5 billion in broadcasting properties.
By coincidence, this week we wrote about the CRTC’s approval of start-up OneSoccer TV’s demand to be carried on the now-approved Rogers-Shaw cable platform, reaching 47% of the English Canadian cable market.
It was a victory for TV minnows. The merger played no small part in the Commission rethinking its 2015 policy on channel carriage that deferred to the cable providers.
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The House of Commons passed most but not all of the Senate amendments to Bill C-11 and sent the legislation back to the upper chamber. The Liberals imposed closure on debate with the support of the NDP but not the Bloc or Greens who support the legislation otherwise.
In the House, Conservative leader Pierre Poilievre flashed a copy of George Orwell’s classic dystopian novel 1984 as a cheeky (and unparliamentary) prop to make his point. He falsely claimed (in French) that the Bill censors what Canadians can say or hear online and that the censorship would be administered by ‘woke people in Ottawa.’
Since we all can take a joke, here’s to guessing what book titles the Liberals might display in the House next time Mr.Poilievre speaks.
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There is a story coming out of Silicon Valley that serves as a kind of epilogue to the imbroglio over the Canadian Heritage Committee’s document subpoenas to Google and Facebook.
Federal Court Judge James Donato ordered legal costs against Google —and retained the option of imposing default judgment against Google— for destroying evidence in four anti-trust suits brought by thirty-seven US state Attorney-Generals. The documents in question were internal chat records between Google employees which should have been retained in response to legal notices sent by the plaintiffs to preserve evidence.
Here at home, the Newsmedia Canada alliance of publishers is publicly pushing the Canadian Competition Bureau to investigate Google’s market power in digital advertising.
The order knocks out several of Fox’s legal defences including an argument that platforming false and unrebutted allegations of vote-rigging in the 2020 Presidential election was just ‘opinion’ protected under the US 1st amendment.
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Sometimes CRTC rulings on seemingly minor regulatory disputes raise big issues. The Commission’s ruling last week in favour of OneSoccer and against Rogers does that.
‘OneSoccer’ is a programming service owned by start-up Timeless Inc. It devotes itself to broadcasting Canadian soccer. It’s calling card is its exclusive rights to the eight-team Canadian Premier League as well as FIFA World Cup qualifying games for the two national teams (but not the quadrennial FIFA tournaments).
OneSoccer already offers its programming on its own online streaming site for $10 monthly. It’s trying to make the crucial breakthrough into the linear cable TV market. It took the first step by securing a cable deal with Telus before approaching Rogers in April 2021, a month after the Shaw-Rogers merger was announced.
Rogers said no thanks.
Miffed, OneSoccer filed a complaint to the CRTC under its ‘undue preference’ regulations that govern the opportunity of programming services to get on to cable and satellite platforms serving ten million Canadian households.
‘Undue preference’ in CRTC-speak means either a cable company favours its own channels —like Rogers favouring Sportsnet— or carries some third-party channels while denying carriage to similar services.
OneSoccer accused Rogers of trying to smother a potential competitor in the crib, pointing to Rogers’ Sportsnet and Sportsnet World channels, but also complained it was being treated unfairly because Rogers Cable carries soccer programming on Bell’s TSN, Ethnic Channels’ beIN Sports and TLN’s EuroWorldSports.
Also OneSoccer wasn’t shy about wrapping itself in the Canadian flag: “Rogers appears not to be concerned that its viewers can watch extensive coverage of German and English soccer, but not Canadian soccer.”
You can follow the back-and-forth volley of arguments between OneSoccer and Rogers here…
Rogers had a pretty good defense if it weren’t for the merger and the remarkable success of our National Soccer Teams.
That strong position, on paper anyway, stems from the Commission’s ruling in 2015 to roll back existing rights of independent programming services to ‘mandatory access’ to cable platforms. The Commission put the cable companies in the driver’s seat determining which channels are popular enough to earn carriage on a distribution platform that at least in theory is not infinite.
The Commission remained the watchdog by enforcing the undue preference regulations as well as its ‘1:1’ rule that cable companies must carry one third-party channel for each of their own.
To punctuate the new gatekeeper policy, in 2016 and 2017 the Commission blessed Bell and Vidéotron kicking the declining Avis de Researche and BBC Kids channels off of their linear platforms.
The 2015 policy wasn’t OneSoccer’s only problem. As much as Canadian soccer is growing in popularity, OneSoccer struggled to give the Commission convincing viewing data of enough games with enough audience to make the leap from a streaming website to a viable television channel.
Under the 2015 policy, you would expect a Rogers win.
Well that was then, this is now.
Having approved the merger of Rogers and Shaw cable and satellite properties in March 2022, the Commission was sensitive to the fact that if ISED Minister François-Philippe Champagne approves the overall deal it will put Rogers in command of 47% of the English Canadian cable TV market. The Commission’s approval of the merger makes it that much harder to live up to its 2008 ‘Diversity of Voices’ policy which links better programming to more competition.
That is why the Independent Broadcast Group pleaded with the Commission to reject the merger because they were sure their members —-the minnows of the industry— will get screwed or just shut out from a must-have platform and that diverse programming will suffer as a result.
In short the OneSoccer complaint was a litmus test of whether the minnows have a chance.
As you read the Commission ruling you can see them straining to tick off the legal boxes to rule in OneSoccer’s favour. That required the Commission not only to favourably compare the popularity of Canadian domestic soccer leagues with European first division football, but to ignore the lack of audience data.
It also required the Commission to ignore the glaring question of why OneSoccer couldn’t prove Rogers’ undue preference by first demonstrating its own viability through carriage deals with Bell, Vidéotron, Eastlink and Cogeco?
In the end the Commission stated plainly that if ‘given the opportunity’ OneSoccer ‘might’ prove viable on cable. It ordered Rogers to put OneSoccer on the cable dial.
The Commission then went on to address the elephant in the room, Canadian content:
As noted above, Timeless stated that 90% of OneSoccer’s programming is Canadian. Further, it is likely that OneSoccer is the only service that broadcasts only Canadian soccer and soccer-related content. Therefore, Rogers’ distribution of OneSoccer on linear television would benefit the Canadian broadcasting system by enhancing the availability of Canadian content on television, an objective defined in the Act.
That statement earns a hearty endorsement from MediaPolicy.ca but with the observation that there is no specific regulatory policy directing an outcome like ‘carry more national sports.’
The desirability of platforming any particular Canadian contentwas supposed to be left to the corporate gatekeepers designated under the 2015 policy. The Commission is not supposed to pick winners, save for the undue preference check.
Also keep in mind, another channel with Canadian content that is currently on Rogers Cable may get kicked off the island as a result: Rogers is only obliged by the Commission to carry 45 independent programming services.
The epilogue to this story is that it is not over: OneSoccer must still negotiate retail price and ‘theme’ packaging with Rogers. Should be fun.
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This weekend’s recommended read is New York Times columnist Tom Friedman’s view that this tool and/or weapon heralds the modern world’s arrival at a ‘Promethian’ moment of hope and dread.
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Meetings like this week’s Ottawa visit by US President Joe Biden to discuss Canadian-American relations with the Prime Minister usually include the hot trade issues of the day.
As the New York Times observed beforehand, the two leaders ‘are likely to go through the ritual…of griping about some perceived trade injustice by each other’s country.’
Certainly Justin Trudeau wanted to talk about Biden’s ‘Buy America’ program for government-funded domestic projects.
Internet activist Michael Geist predicted a high noon moment between the two leaders that would feature American disgruntlement with ‘serious trade tension’ he suggests exists because of Canada’s various Internet-related initiatives including Bills C-11 and C-18. Geist wasn’t alone in anticipation, several press reports speculated a discussion of that legislation was imminent.
The visit came and went without trade griping and posturing on Internet legislation or any other trade issues, judging from the leaders’ joint statement which was preoccupied with far more existential matters.
There is one thing of which we should remind ourselves when the US President (or the Canadian Prime Minister) give voice to trade concerns: a trade ‘concern’ is not necessarily any indication of a plausible violation of our trade treaties, the global GATT regime and trilateral CUSMA deal.
In the case of the Canadian legislation for Online News (C-18) and Online Streaming (C-11), Biden’s US Trade Representative and his Ambassador to Ottawa have both dutifully advocated for blue-state Californian interests in Silicon Valley and Los Angeles, much in the way the parents of the schoolyard bully like get in the teacher’s face.
An American complaint on C-18 would be particularly without merit, as the University of Calgary’s Hugh Stephens has patiently outlined here and here.
It’s disappointing when Canadians uncritically endorse American trade pressure because they don’t like C-18, a piece of legislation supported by three out of four Canadian political parties and endorsed in principle (in the 2021 election) by the fourth.
This happens every time there is a cross-border disagreement about Canada’s cultural legislation. On that point, MediaPolicy took a little trip down memory lane here and here.
Suffice it to say, there are so many other legitimate policy arguments to be made about C-18 without Canadians giving encouragement to US commercial interests making bogus trade claims.
Last word on this for now: it ought to be noted in the case of C-18 that American interests don’t even speak with one voice, as the US NewsMedia Alliance supports C-18 and an American version of it which is stalled in Congress.
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It’s not that American politicians are averse to putting the screws to Big Tech if not headquartered in their own country.
This week Congress gave a proper Washington hazing to TikTok CEO Chew Shou Zi over the security of personal data with the threat of banning the Chinese-owned social media application from US soil.
Banning an app in America. Ponder that a bit.
The Washington Post report of the Congressional hearing is helpful: the bottom line is legislators were not buying TikTok’s privacy solution which is to re-shore its American data and keep it on an American company’s servers in Texas.
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To be fair to US legislators, our Parliamentarians do a little Big Tech hazing from time to time.
We mentioned last week that the Liberals on the Heritage Committee got carried away by demanding Meta produce evidence of its corporate communications with private Canadian citizens about Bill C-18.
This past Monday the Liberals wisely backed down and reworded the offending the summons based on Conservative MP Rachael Thomas’ suggestion (who then abstained on the vote). Here’s the Globe and Mail report on that.
Critics were quick to point out that the same inappropriate demand for citizen communications remained in a previous summons issued to Google. But the inconsistency was ignored in Committee, perhaps because MPs from all parties hadn’t been paying close enough attention when unanimously approving the earlier wording of the Google summons.
Perhaps Google will ignore that aspect of the Committee’s request and MPs will look the other way.
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Here’s our plug for Mark Goldberg’s blog Telecom Trends that posted a seriesthis week about Internet and wireless pricing.
Monthly broadband and cell phone bills might be the most politicized consumer policy issue going and this industry expert offers a helpful rigour about the facts that laypersons will appreciate.
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