At the end of February 2022, Canada’s communications regulator, the Canadian Radio-Television and Telecommunications Commission (the “CRTC” or “Commission”), quietly issued Broadcasting Regulatory Policy CRTC 2022-47 (BRP 2022-47) to launch the Annual Digital Media Survey (the DM Survey), a new survey to gather information on the activities of digital media broadcasting undertakings (DMBUs).
Accompanying the DM Survey is a new mandatory registration requirement for all parties carrying on DMBUs and meeting the minimum revenue thresholds set out in BRP 2022-47.
DMBUs in Canada are understood to mean undertakings that provide “broadcasting” that is either (i) delivered and accessed over the Internet, or (ii) delivered using point-to-point technology and received by way of mobile devices. DMBUs have largely been exempt from regulation under Canada’s Broadcasting Act since 1999.
What information is being collected?
The DM Survey targets information on: (a) revenues (subscription/advertising/transactional/other); (b) programming expenditures; (c) subscriptions (full price/discounted/free); and (d) any other sources of revenue not captured in the other survey categories.
Audio service respondents will be required to provide data on the payment of royalties to Canadian and non-Canadian artists and content creators. Audiovisual services will be required to provide specific data on Canadian and non-Canadian programming expenditures.
In light of the commercially sensitive nature of the information collected by the DM Survey, the CRTC will vary its Rules of Practice and Procedure to designate all DMBU-level data to be collected as presumptively confidential. Although the form and substance of any eventual reporting have yet to be determined, one can assume that only aggregated data by industry segment will be published to mitigate any competitive risk to DM Survey respondents.
Who is subject to the DM Survey?
According to the Commission, both Canadian and non-Canadian DMBUs that provide services in Canada will be required to participate in the DM Survey.
The Commission states that the Act applies to all broadcasting undertakings carried on in whole or in part within Canada and that the terms of the Direction to the CRTC (Ineligibility of non-Canadians), which prevents the Commission from issuing a broadcasting licence to a non-Canadian, do not necessarily limit the Commission’s authority to regulate broadcasting.
In addition, in the Commission’s view, it holds broad discretion to adopt any terms and conditions it deems appropriate in granting an exemption. Hence, it is well within its purview to require exempt DMBUs to submit such information regarding the undertaking’s broadcasting and digital media activities as the Commission deems necessary to fulfill its statutory duty under the Act.
BRP 2022-47 establishes minimum revenue thresholds that determine whether a person carrying on a DMBU must complete the DM Survey – CA$25 million and CA$50 million in revenues derived from the Canadian broadcasting system for audio and audiovisual services, respectively. All of a given ownership group’s revenues derived from the Canadian broadcasting system are to be taken into account in assessing the threshold and includes revenues derived from bundled or subscription services.
When are DM Survey responses due?
As an initial step, all persons carrying on a DMBU in whole or in part in Canada, and whose ownership group’s revenues derived from the Canadian broadcasting system exceed the relevant audio or audiovisual thresholds set out in BRP 2022-47, must register with CRTC by April 30, 2022. Among other things, the initial registration requires disclosure of the jurisdiction of incorporation and head offices of the reporting entity, relevant website(s) and launch dates, all related licensed broadcasting undertakings, whether the DMBU provides unique content, and the language(s) of content provided.
In early May 2022, Commission staff will issue launch letters for the inaugural DM Survey to registered parties.
While BRP 2022-47 states that responses to the DM Survey for the 2020–2021 broadcasting year are due by June 30, 2022, we understand that this may be adjusted in the launch letters to be issued.
Subsequent surveys will be administered each fall, with a filing deadline of November 30.
Conclusion
The data collection efforts represented in BRP 2022-47 mark the unmistakable policy shift that will be consummated with the passage of amendments to the Broadcasting Act (the “Act”), expected in 2022, to encompass digital audio or audiovisual content delivered or accessed via the Internet or on mobile devices in Canada.
For further information and discussion on this and related policy and legislative developments in Canada, please contact Monica Song, Chair of the Communications Law Group at Dentons Canada, at monica.song@dentons.com or 613-783-9698.
