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Broadcasting and Telecommunications Legislative Review Panel: “Time To Act”

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The Broadcasting and Telecommunications Legislative Review Panel (BTLR) was tasked in 2018 by the Minister of Innovation, Science and Economic Development and the Minister of Canadian Heritage to review Canada’s outdated communications legislative framework. That framework includes the 1991 Broadcasting Act.

The BTLR’s long awaited report was released today.

As anticipated and intended, the Panel has gone well beyond a mere “legislative review”. It has considered decades-old policies, structures, institutions and practices, and made recommendations to change or replace many of these in fundamental ways.

The report speaks to a broad range of industry stakeholders. Chief among these are online media content providers, notably foreign services.

Among its calls for “Immediate Action” — even prior to developing and enacting new legislation — the Panel calls on government to:

Require media content curators now exempt to contribute to Canadian content: to achieve this, the federal government should require the CRTC to hold hearings and issue a new exemption order so that those media content curators that derive revenue from Canada and are now exempt from licensing, such as Netflix, are required to contribute to Canadian content through spending and discoverability requirements, consistent with our recommended legislative framework.

End the competitive disadvantage facing Canadian companies: apply GST/HST equitably to media communications services provided by foreign online providers.

More broadly, the Panel proposes to require all media content undertakings with “significant Canadian revenues”, and delivering media content via the Internet, to register with the Canadian Radio-television and Telecommunications Commission.

“This new model would bring all those providing media content services to Canadians – whether online or through conventional means, whether foreign or domestic, whether or not they have a place of business in Canada – within the scope of the Broadcasting Act [proposed to become the Media Communications Act] and under the jurisdiction of the CRTC.”

BTLR Panel Report, January 29, 2020

The Panel recommends that “for greater certainty”, the Act be amended so that it clearly applies to foreign Internet streaming services with revenues in Canada.

The CRTC would set obligations in various areas — content curation (streaming services); content aggregation (distribution services); and sharing (user / interactive services) — with a view to supporting Canadian content. For example, streaming companies would have spending requirements on Canadian content. The specifics –who contributes, for which activities, and how much — would be up to the CRTC. The Panel recommends ensuring that the CRTC is equipped to “regulate economic relationships between media content undertakings and content producers, including terms of trade”, and help Canadian producers to retain commercial rights over their content.

The CRTC would retain its power to exempt providers or classes of providers from regulation. If the Panel’s broad recommendations are adopted, much could ride on that discretionary power. In 1999, the CRTC relied on its discretion to exempt “new media” broadcasting from almost all regulation. That exemption has remained in place for more than 20 years. Today’s Panel report proposes a dramatic shift, from exempting and excluding online media content services from the regulatory framework, to bringing them under direct CRTC regulation.

This post addresses top-line issues of interest for online media content providers. For those picking up the report in the coming days, recommendations 51 through 85, and Chapter 3, address the “Creation, Production and Discoverability of Canadian Content”. We will provide additional highlights in upcoming posts.

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