In mid-November the Chairman of the CRTC addressed the Canadian Chapter of the International Institute of Communications on the subject of ‘getting ahead of the curve’. Part of this address – “Innovations in consultations” – described the Commission’s desire to be responsive to Canadians, and to bring them “into the centre of our hearings”. Chairman Blais noted that the CRTC has been “creative …, … [and] innovative – ahead of the curve”. With the goal of “transforming our hearing room in the National Capital Region into a national forum for open debate”, said the Chairman, the CRTC has hosted online discussions, staged events on Facebook, opened a Reddit thread, and used American Sign Language and Langues des signes québécoise for those who are deaf or hard of hearing.
As an organization focussed on research and policy analysis in communications, and a regular participant in major CRTC proceedings, the Forum supports the efforts to make CRTC proceedings more inclusive. Almost everyone in Canada relies on its communications systems – including the radio and television services that provide audiences with a wide range of informative, enlightening and entertaining content. Inviting comments through different media – surveys, Reddit, Facebook, online intervention forms – could encourage more people to participate in CRTC proceedings, and provide the CRTC with new ideas.
Another way to encourage participation by the public would be for the CRTC to re-design its current approach to public hearings, to make it easier for everyone to understand and comment on the specific major and minor proposals being made.
The CRTC’s current proceedings to hear the licence renewal applications from five major broadcasters show why it needs to innovate in this area, to make it easier for the public to understand how well broadcasters have lived up to the terms of their licences, and to evaluate their plans for the next few years.
The current proceedings began for broadcasters early this year in February – just a few days after the CRTC’s important, two-week hearing on local television ended, and without a CRTC answer to the questions raised by that hearing. The CRTC asked six of Canada’s largest television broadcasters to apply to renew their conventional and discretionary television services. Each broadcaster received a customized set of questions to answer – but the CRTC did not publish the questions, saying that it would do so at some unspecified “later date”. Withholding its questions and its new local TV policy made it impossible for the public – individual Canadians, other stakeholders in the system such as guilds and unions, and non-profit organizations such as the Forum – to begin to prepare their evidence for the CRTC’s proceeding. Broadcasters, on the other hand, knew the case they had to meet by early February.
The CRTC’s renewal proceedings began in theory for the public on June 15, when the CRTC published the renewal applications. In reality they began several weeks later, because when it published the applications the CRTC also asked broadcasters to file new, important information about local programming. Broadcasters were to file this information on June 27, but were granted an extension to July 8. But in mid-July, the CRTC asked Bell, Quebecor, Rogers, Corus and Telelatino to file more information, by July 25. In other words, members of the public who wanted to review broadcasters’ complete and final applications did not have this chance until July 25th. They were left with one month to review and consider broadcasters’ applications to renew nearly two hundred TV programming services.
In theory, a month should have sufficed for the public to analyze and comment on broadcasters’ performance and proposals, because the CRTC has moved away from closely scrutinizing individual television services, towards reviewing the overall performance of broadcasting ownership groups.
The problem is that the application process itself remains stuck in the past. Thirty years ago, when the CRTC reviewed each TV station one by one – not en masse, by ownership groups – it posted all correspondence about a station in a single file, available to the public (in the CRTC’s “examination room”). Nearly a hundred private TV stations were in operation, and the CRTC heard license renewal applications city by city, making it possible to review the files of the stations in each city in time for each renewal hearing.
But the CRTC has now switched to en masse licensing. It no longer considers licences one by one. Instead it sets expenditure targets for content created by Canadians (Canadian programming expenditures, or CPE), and for programming of national interest (PNI), as a percentage of each ownership group’s revenues. It sets hours of local news and non-news programming for all TV stations as a function of the population of the locations they serve (seven hours per week for stations in locations with a population under one million people; fourteen hours per week for stations in all other locations). According to its new TV policy, the CRTC will also set expenditure levels for local programming – local programming expenditures (LPE), if you will – across the board, although the LPE levels themselves will only be determined at the renewal hearing.
Unfortunately, the CRTC has not published a summary of these five key indicators by ownership group, to enable members of the public to understand what broadcasters are actually putting on the table, or indeed, how they have performed over their now-ending licence term.
As it did when it opened its doors in 1968, the CRTC has instead invited the public to review every document filed by broadcasters, and to figure out from those documents what the applicants are really proposing. At the time of writing (21 November 2016), the information published by the CRTC to renew large broadcasters’ television programming services amounted to 107 megabytes of data, or 436 multi-page files:
|Total, all languages and broadcasters||436||107.02|
The absence of a summary table of key indicators either by ownership group or by programming servie makes it especially difficult for those whom the CRTC has invited to appear before it at its two public hearings on the renewals (lasting from November 22nd to the 24th, for French-language television services, and from November 28th to the 31st, for English-language television services), for two reasons.
First, the CRTC continued to ask broadcasters questions after the intervention deadline, with new documents filed on October 17 and October 28 – informed discussion of those questions implies that participants at the hearing have reviewed each document in comparison with the documents they replace. Even then, the record remained incomplete: while a letter from the CRTC to Corus on 17 October 2016 was available online, for example, previous e-mailed CRTC correspondence and three attachments also referenced in the letter were not posted.
Second, the CRTC then also published – on November 2 – a “working document for discussion”. It says that it wants to discuss these fifteen issues with appearing interveners at the hearing include:
- “the composition of the various ownership groups;”
- “the evaluation of group-specific proposals and the implementation of requirements relating to Canadian programming expenditures (CPE) and programs of national interest (PNI) in the English- and French-language markets—including possible adjustments to reflect the realities of these markets—as well as flexibility provisions for CPE requirements;
- “the exploration of matters related to the tracking of CPE and PNI expenditures, ensuring that requirements regarding these expenditures are fully met in the licence term, the measurement and evaluation of these expenditures, as well as the appropriate redress mechanisms in the case of non-compliance;
- “programming diversity, including but not limited to original and original first-run production in both the English- and French-language markets;
- “production-related issues in the English- and French-language markets, including but not limited to independent production requirements, promotion, discoverability, the impact of affiliated production companies when considering independent production issues and regional production including official language minority community (OLMC) reflection;
- “the implementation of the Commission’s local and community framework, which includes exhibition requirements relating to the broadcast of locally reflective news program segments, expenditure requirements concerning the production and broadcast of locally reflective news, the flexibility granted to broadcasting distribution undertakings (BDUs) to provide financial support for locally reflective news, as well as locally relevant programming requirements;
- “accessibility-related issues including closed captioning and described video quality and availability, particularly in the French-language market;
- “the application of the Wholesale Code (the Code) and issues related to the practices contemplated by the Code; and
- “the evaluation of the 12-minute per clock hour limit on advertising for discretionary services.
- “Rogers: OMNI broad service and news requirements, the application of the Commission’s local programming framework as outlined in Broadcasting Regulatory Policy 2016-224, as well as Rogers’ application for the mandatory distribution of a new ethnic discretionary service as part of the basic service;
- “Bell: its proposal to shut down 40 rebroadcasting transmitters across the country;
- “Corus: exceptions sought regarding local programming requirements for certain of its services; and
- “Groupe TVA and Groupe V: specific local programming requirements in various regions of the province of Quebec, OLMC reflection and the method of calculating CPE requirements.
- “Resubmission of financial information by Corus
- “The Commission therefore intends to discuss at the hearing its proposed approach to efficiently implement the eventual technical changes resulting from the 600 MHz repack, as well as the wording of the proposed condition of licence set out in the appendix to this document.”
The CRTC has in the past few years also published such working documents, but often during its hearing – making the publication of the document several weeks beforehand a welcome and useful change. Unfortunately, the CRTC’s working document does not state broadcasters’ positions and evidence on these points. Broadcasters know their own evidence, and likely that of their competitors. But the public? Is the CRTC assuming that members of the public already know where the information is, or will be able find such information easily, wherever it might be in the 436 files (some many pages long) now on the CRTC’s website.
Considering that any one of these issues could be the subject of a university-level essay, or journal article, it is perplexing that the CRTC did not summarize the evidence from broadcasters which it already has on these points. The result is that appearing interveners or those who file reply comments who want to provide the CRTC with informed comments will be redoing a great deal of the work that the CRTC’s staff has already done. The effort involved is simply too massive – with the result that most Canadians are effectively excluded from this process altogether. Interveners’ opinions matter – CRTC Commissioners regularly quote from their submissions – but opinions without evidence may have little impact: in the past few years the Commission has regularly told members of the public, or stakeholders, that while it had heard their concerns, it did not accept their recommendations because they did not present sufficient evidence.
A more innovative approach for a 21st century regulatory tribunal that wants to encourage public participation, would be to simplify the process for reviewing large files such as those of Canada’s largest broadcasters, drawing on the idea of agreed-upon facts used by courts in true judicial proceedings. For instance, instead of asking broadcasters questions, and then hearing the public’s concerns expressed months later in their interventions, the CRTC should begin by publishing its own analyses of the broadcasters’ exhibition and expenditure performance over the just-ending licence term.
The CRTC should also publish summary statistics about the programming available to Canadians. As Parliament’s broadcasting policy for Canada largely concerns programming issues, the CRTC collects data from every TV and radio station about the programming it broadcasts. The CRTC presumably evaluates each licensee’s programming performance before renewing its licence(s), to ensure that licensees are meeting the requirements of their licences, and keeping their promises to Canadians. The CRTC should make these analyses public, along with information on the hours of original programming broadcast by individual programming services and ownership groups.
The Commission should then invite the public to review the available data and comment on the issues that matter to them – and then incorporate questions on those points in the renewal questions it sends to applicants.
Finally – but most importantly – the CRTC should summarize the key historical and projected data it has received from each applicant, in terms of the issues it has already identified in its working document, and update these summaries when it receives new data from applicants. It should post this information online, as quickly as possible, and clearly identify changes when these happen.
Improving the CRTC’s current approach to its proceedings by making key evidence easily accessible would benefit the public, interested stakeholders, public interest groups and broadcasters themselves. They could focus their energies on gathering their arguments and their evidence, not on reading hundreds of documents from applicants to determine what each is or is not saying. Making information readily available and easily accessible would really ‘transform the CRTC’s hearing room in the National Capital Region into a national forum for open debate’, as the CRTC’s Chairman wishes.
 Jean-Pierre Blais, Chairman, Canadian Radio-television and Telecommunications Commission, “Getting ahead of the curve”, Address to the annual conference of the Canadian Chapter of the International Institute of Communications (16 November 2016), http://news.gc.ca/web/article-en.do?nid=1154239.
 Bell, Rogers, Corus, Shaw, Quebecor and Remstar.
 Call for licence renewal applications, Broadcasting Notice of Consultation CRTC 2016-44 (Ottawa, 8 February 2016), http://www.crtc.gc.ca/eng/archive/2016/2016-44.htm.
 Ibid., at paragraph 3: “Given that there is no licence renewal application form for television services owned by large ownership groups, the Commission has sent customized letters to each group today. Licensees are required to respond to questions set out in the letter. These questions and the responses provided will comprise the application, which will be published at a later date.”
 Executive Director, Broadcasting, CRTC, Broadcasting Commission Letter addressed to Sylvie Courtemanche (Corus Entertainment Inc.), (Ottawa, 17 October 2016), http://www.crtc.gc.ca/eng/archive/2016/lb161017.htm.
 Renewal of television licences held by large English- and French-language ownership groups – Working document for discussion, Broadcasting notice of consultation 2016-225-3 (Ottawa, 2 November 2016), http://www.crtc.gc.ca/eng/archive/2016/2016-225-3.htm.
 See e.g., Requests that Rogers Media Inc. reinstate local third-language newscasts on its OMNI stations, Broadcasting Decision CRTC 2016-8 (Ottawa, 12 January 2016), http://www.crtc.gc.ca/eng/archive/2016/2016-8.htm#fnb7, at para. 29.