The Canadian Radio-television and Telecommunications Commission (the “CRTC”) has launched a consultation to examine market dynamics among small, medium, and large programming, distribution, and online services as part of its plan to implement the modernized Broadcasting Act (the “Act”). The Commission’s stated intent of this consultation is to ensure the continued sustainability and growth of Canada’s broadcasting system while meeting the Act’s policy objectives and ensuring that Canadians are able to choose the content that they want to watch or listen to. The Commission has established two key goals for this consultation:
- a sustainable model for the delivery and discoverability of diverse Canadian and Indigenous content; and
- a fair and competitive marketplace.
The consultation will address both traditional and online audio-visual and audio services.
To achieve the above-noted goals, the CRTC is focusing its efforts on five broad issues, each of which are summarized below. Notably, the Commission does not propose for comment any preliminary views on the regulatory framework to achieve those aims. Rather, the consultation focuses on possible problem areas and the relevance and effectiveness of the Commission’s existing regulatory schemes.
Understanding the Current Market Dynamics and the Challenges and Opportunities that They Present
Considerations include exploring measures to: (i) expand support for broadcasting undertakings’ access to the broadcasting system; (ii) enhance the discoverability and prominence of Canadian and Indigenous content — particularly content created by independent programming services; (iii) ensure Canadians continue to have access to events of national and cultural significance; and (iv) address the impact of the increasing number of connected devices on the discoverability of Canadian and Indigenous content and on the sustainability of the broadcasting system.
Examining the Effectiveness of Existing Regulatory Tools in Light of the Evolving Market Dynamics
The CRTC has implemented several regulatory tools to ensure that Canadians can access the content they want to watch or listen to. The tools the Commission identifies include over-the-air broadcasting, mandatory distribution pursuant to s. 9.1(1)(h) of the Act, the 1:1 linkage rule whereby broadcasting distribution undertakings (“BDUs”) must distribute at least one discretionary service of an independent programming undertaking for each discretionary service of a related programming undertaking that it distributes, packaging requirements, and preponderance of Canadian services.
A Fair and Competitive Marketplace – Understanding Market Dynamics and the Effectiveness of the Wholesale Code
The CRTC is seeking input on whether the Wholesale Code continues to ensure fair and transparent negotiations between BDUs and programming undertakings, whether it should be applied as a regulatory obligation to online undertakings, whether it should be revised and updated, and whether the CRTC’s role in negotiations involving a distribution or affiliation agreement should be revised.
Exploring New and Emerging Areas That May Require Regulatory Support
The CRTC will consider new and emerging areas where broadcasting undertakings could benefit from regulatory support, including potentially providing guidance on the definition of “good faith” negotiations between online undertakings and programming undertakings where the Commission requires the former to carry the latter’s services, and potentially adopting a data-sharing framework that will be suitable for both audio-visual and audio broadcasting undertakings (including online undertakings) without affecting companies’ competitiveness.
Modernizing Dispute Resolution
The CRTC will evaluate current dispute resolution tools, assess the role of using good faith negotiations before using the CRTC’s dispute resolution mechanisms (mediation, standstill rule and final offer arbitration), and review the undue preference framework.
Parties have until February 24, 2025 to file interventions and replies will be due by March 11, 2025. A public hearing is scheduled for May 12, 2025. After the hearing, parties will be given the opportunity to file brief final submissions responding to interventions, comments, and responses to undertakings.
