Bringing Canada’s Broadcasting Act into the digital age

The Minister of Canadian Heritage, the Honourable Steven Guilbeault tabled Bill C-10, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts in the House of Commons today, which he characterized as proposing “major changes” to the Broadcasting Act. The text of the bill is available here, and the government press release and Backgrounder are available here and here. 

Background

The existing Broadcasting Act was last extensively amended in 1991, long before radio and television stations were referred to as “traditional” broadcasters, and before connectivity to the Internet and the provision of all manner of services via the Internet became widespread. Over the past three years, a series of statements, consultations, reports and media stories have signalled, in evolving and sometimes contradictory ways, how Canada’s approach to regulating broadcasting could – or should – be modernized. 

What are the key proposed changes?

The amendments to the Broadcasting Act proposed in Bill C-10 include proposed changes to: 

• Regulate digital service providers.  “Online undertakings” would become a distinct class of broadcasting undertaking to be regulated by the CRTC, alongside traditional broadcasters.  This new class would cover undertakings for transmitting or retransmitting programs to the public over the Internet.
• Update the Canadian broadcasting policy.  The Act would be amended to require the Canadian broadcasting system to better reflect Canada’s Indigenous peoples, persons with disabilities, and Canada’s diversity.
• Update the regulatory toolkit.  Significant expansion of CRTC powers to impose new requirements on all or some classes of broadcasting undertakings, including in relation to:
  • registration with the CRTC;
  • oversight of certain types of agreements;
  • expanded information gathering and information sharing powers;
  • content discoverability;
  • accessibility obligations;
  • mandatory carriage of emergency messages;
  • imposition of conditions of service on persons having “programming control” over a broadcasting undertaking to ensure that the programming is of a high standard; and
  • fees to fund the CRTC’s operations.
• Impose expenditure requirements.  The Bill would give the CRTC new regulation-making powers to require broadcasting undertakings to spend on:
  • the development, financing, production and promotion of Canadian content;
  • support for and promotion and training of Canadian audio-visual content creators; and
  • support for public participation in CRTC proceedings.

According to the government’s estimates, if the CRTC were to require online broadcasters to contribute to Canadian content at a similar rate to traditional broadcasters, the new regime “could result in online broadcasters being required to invest more than $800 million [almost $600 million USD] in our creators, music and stories by 2023”.

• Add more direct, stronger enforcement powers for the CRTC. The regulator would have the authority to issue administrative monetary penalties for non-compliance with its requirements.
• Update the approach to regulation.  The CRTC would have the flexibility to apply the principle of proportionality to the manner in which it regulates the broadcasting system and to determine whether its orders and regulations should apply to all or some classes of broadcasting undertakings.

For a deeper preliminary analysis of the context and changes proposed in Bill C-10, please see our Dentons Insight article, “Altering the broadcasting landscape – Canada’s Broadcasting Act to be amended”.

What’s next?

Bill C-10 is the first part of a multi-pronged approach driven in part by the realities of operating as a minority government, in part because the government will not move unilaterally on issues such as the OECD’s proposed three per cent tax on multinational online service providers. With speculation that the minority Liberal Government may trigger a general federal election in 2021 (well in advance of the pre-set October 2023 date), the fate of Bill C-10 of the 43^rd Parliament is uncertain.   If the Bill passes into law, the Government has already signalled that it will be directing the CRTC to undertake a significant number of regulatory proceedings and measures to modernise and rebalance the regulatory framework governing the Canadian AV sector.

The coming weeks and months will be active ones for stakeholders. Broadcasters, distributors, OTT services, and content producers have a great deal riding on how Canada shapes its regulatory regime, including whether Canada follows or diverges from trends now emerging in other countries. That changing shape may arise from the bill, from government directions to the CRTC, or from the regulator’s own policy decisions, in the months to come.