The Canadian Radio-television and Telecommunications Commission (CRTC) has issued its fourth “Let’s Talk TV” policy decision on the regulation of the Canadian television system. Today’s decision is A World of Choice – A roadmap to maximize choice for TV viewers and to foster a healthy, dynamic TV market.
The new roadmap affects the “basic” TV service Canadian subscribers receive, and adds new options for subscribers to choose additional services on a pick-and-pay or a la carte basis.
We wrote last week about the CRTC’s new regulatory measures geared to creating and showcasing Canadian content, set out in its policy decision The Way Forward – Creating Compelling and Diverse Canadian Programming. Many of those decisions are geared to industry-based expenditure and exhibition requirements, and will have an indirect or gradual impact on viewers’ TV experience. By comparison, today’s decisions take direct aim at viewer choice.
Skinny Basic
By March 2016, licensed broadcasting distribution undertakings (BDUs) must offer a small basic, entry-level service that includes:
- local and regional Canadian over-the-air (OTA) stations;
- the applicable provincial / territorial educational service;
- all mandatory distribution “9(1)(h)” television services – about 15 channels, depending on the market; and
- the community channel and the proceedings of the provincial legislature (if offered).
The basic package may also include other Canadian OTA stations in markets where fewer than 10 local or regional stations are available; local radio stations; an out-of-province designated educational service, and a set of “US 4+1 signals” (NBC, CBS, ABC, Fox and PBS). BDUs may not offer any other services in the basic package.
Moreover, the basic package must now be priced at or below $25. The CRTC had de-regulated the basic package in 1997, stating at that time that deregulation represented “a fundamental change” for subscribers from a “20-year regulatory regime with Commission scrutiny” of basic service rates to a regime driven by market forces only. With today’s decision, the Canadian regime is back under Commission control, to further its policy of consumer control.
Pick and Pay / A la carte
In 2013, the Governor in Council (Cabinet) issued an Order in Council to the CRTC to report on how to maximize pick-and-pay in Canada. In response, the CRTC observed that Canadians were getting “a more customized viewing experience” from online platforms, and considered how mandating increased choice and flexibility for television would potentially impact cable and satellite operators, broadcasters, and the production industry.
In today’s decision, the CRTC has taken the position that “it must take positive steps to bring about greater choice and flexibility in the Canadian television system”.
- By March 2016, all licensed broadcast distributors (BDUs) must offer all discretionary services – meaning those not in the basic service – either on a pick-and-pay basis or in small, “reasonably priced” packages. These packages may be set by the BDU or by the subscriber.
- By December 2016, all licensed BDUs must offer all discretionary services on both a pick-and-pay basis and in small packages.
The CRTC noted the risk this “unbundling” poses to the Canadian system and the survival of some Canadian services; its greater concern was the risk it saw in “maintaining the status quo in a context of increased demand for more choice”.
Distribution of non-Canadian TV services
While the Commission entitled its decision “A World of Choice”, the Commission has not changed the process for authorizing the entry of non-Canadian services. The current List of non-programming services authorized for distribution (the List) includes a range of U.S. and other foreign services, including channels such as A&E, AMC, and MSNBC. The Commission has authorized services on a case-by-case basis, permitting Canadian services to object to the addition of a new non-Canadian channel on the basis that it will unfairly overlap and compete with its own genre and nature of service. The Commission will continue to authorize only those non-Canadian services that do not compete with Canadian specialty or pay services.
However, the CRTC is bringing the distribution of non-Canadian services in line with the rules set out in today’s policy regarding consumer choice. As a condition of authorization – for existing services to remain on the List, and for new services applying to be added – the service must be offered on the basis of pick-and-pay and small packages. The CRTC has said that “it expects non-Canadian services, as good corporate citizens, to continue to abide by the applicable rules …if they wish to continue to have their programming services available in Canada”.
An Expanded and Stricter Wholesale Code
In 2011, largely in response to what it considered to be imbalances in the wholesale marketplace brought about by “vertical integration” in the industry, the CRTC put in place a new regulatory framework for the commercial arrangements between BDUs, broadcasters, and digital media undertakings. While the 2011 Code was originally drafted with certain mandatory requirements, the CRTC issued a correction to change various instances of “shall” to “should”. Subsequently the CRTC applied elements of the Code to some licensees as a condition of licence.
Today, the CRTC not only effectively put the “shall” back into the Code for the industry as a whole, stating that it will be a regulatory requirement, not a guideline, for all licensed undertakings. The CRTC also indicated that the Code will be expanded to include a number of additional prohibitions and mandatory requirements. These are intended to ensure that the terms of wholesale agreements do not undermine or hinder choice and flexibility in the retail market. New provisions, to enter into effect by September 2015, will target agreement terms that address packaging, service penetration and revenue guarantees, rate cards, and marketing.
Today’s decision was the 4th of 5 arising from the CRTC’s Let’s Talk TV Proceeding. The final decision is expected next week, under the CRTC’s “Protect” banner: consumer protections, BDU Code of Conduct, industry ombudsman, and accessibility issues.
