The Broadcasting Act Blunder, Day Two: What the Government Doesn’t Say About Creating a “Level Playing Field”
A central part of Canadian Heritage Minister Steven Guilbeault’s argument for Bill C-10, his Internet regulation bill that reforms the Broadcasting Act, is that it levels the playing field between traditional and online broadcasters. Guilbeault has tweeted images showing a scale that are designed to suggest that conventional broadcasters such as Bell and Rogers face an unfair disadvantage by facing regulations and mandated payment requirements that do not apply to Internet streaming services. These claims are regularly repeated in the House of Commons with Guilbeault stating this week that “the purpose of the bill is to level the playing field” and “this bill will level the playing field between traditional Canadian broadcasters and online broadcasters.” Those claims continued during debate on Thursday, when MPs repeatedly referenced levelling the playing field as the goal of the bill.
The series on Broadcasting Act Blunders continues by noting that while the “level playing field” claim is seemingly taken as a given, it is at best misleading (prior posts in the Broadcasting Act Blunder series include Day 1: Why there is no Canadian Content Crisis). It is true that conventional broadcasters and broadcast distributors face mandated payments to support Canadian content as part of their licensing requirements. Leaving aside the fact that broadcasters are currently seeking reductions in payments at the CRTC, the notion that the only regulatory burden or benefit is mandated Cancon contributions is a complete misread of the law. The reality is that broadcasters receive benefits worth hundreds of millions of dollars in return for those payments as part of what amounts to a regulatory quid pro quo. None of those benefits are available to Internet streaming services. If the government was serious about levelling the playing field, it would do more than just establish equivalent payment requirements. It would also require equivalent benefits, but those are missing entirely from the bill.
What are some of the regulatory and policy benefits enjoyed by traditional broadcasters and broadcast distributors not available to Internet streaming services? Ten to consider include:
1. Simultaneous Substitution policies, which allows Canadian broadcasters to replace foreign signals with their own. The industry says this policy alone generates hundreds of millions of dollars in revenues for Canadian broadcasters. In fact, Bell went to the Supreme Court to maintain the policy even though it results in less control over the Canadian broadcast schedule, relegates Canadian content to less desirable broadcast times, and ensures that licensing foreign content remains the top priority of Canadian broadcasters. There is no equivalent to the hundreds of millions generated by this policy for Internet streaming services.
2. Must-Carry Regulations, which require broadcast distributors to include many Canadian channels on basic cable and satellite packages. These rules provide guaranteed access to millions of subscribers, thereby increasing the value of the signals and the fees that can be charged for their distribution. Internet streamers compete for subscribers with no guaranteed access.
3. Copyright Retransmission Rules, which create an exemption in the Copyright Act to allow broadcast distributors to retransmit signals without infringing copyright. This retransmission occurred for many years without any compensation. There is no equivalent for Internet streamers.
4. Bundling Benefits, that allow broadcast distributors to bundle less popular Canadian channels with more popular U.S. signals, thereby guaranteeing more revenues to the Canadian broadcasters. There is no equivalent for Internet streamers.
5. Market protection, which has shielded Canadian broadcasters from foreign competition such as HBO or ESPN for decades. Internet streamers compete for subscribers with no market protections and the prospect of users unsubscribing at any time.
6. Foreign Investment Restrictions, which limits the percentage that foreign companies may own of Canadian broadcasters or broadcast distributors, which has the effect of creating a protected marketplace with reduced competition.
7. Eligibility for Canadian Funding Programs, which are available to Canadian entities to support content creation but may be unavailable to foreign entities such as the Internet streamers.
8. Unlimited Distribution Without Caps or Usage Charges, unlike Internet-based services, whose subscribers often face high data costs for accessing those services.
9. Intellectual Property Preferences, which requires that producers be Canadian in order to be certified as Cancon. This leads to rules that preclude foreign companies from producing Cancon and requiring domestic IP ownership. As a result, Internet streamers are excluded from accessing the same funding available to Canadian producers.
10. Trade Agreement Protections, which exempt the Canadian government from treating foreign providers in the culture sector in the same manner as domestic firms. While this provision is subject to potential tariff retaliation (as will be discussed later in the series), it means that standard practices regarding equal treatment do not apply to Internet streamers.
When Guilbeault and the cultural lobby groups talk about creating a level playing field, they typically neglect to address any of these issues. Instead, the focal point is exclusively on equivalent contributions. As will be discussed later in the series, even the proposed contributions are not truly equivalent, but a full assessment of the regulatory playing field should account for the fact that Internet companies compete in the marketplace against well-established competitors such as Bell, Rogers, and Videotron that already have the regulatory deck stacked in their favour.
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