AG won’t fight CMPA’s application for leave to appeal CBC license

The Attorney General of Canada will not make any representations for itself in an application for judicial review to which it is a party over the CRTC's renewal of the CBC/Radio-Canada's license. In a Wednesday letter filed with the Federal Court of Appeal the Attorney General, which is acting on behalf of the CRTC, the office said it would not be contesting the Canadian Media Producers Association's (CMPA) application for review. The CMPA filed leave to appeal the CRTC’s June licence renewal in late July. The organization argues that the commission failed to consider key mandatory considerations and made determinations without evidence. These constitute errors in law, the group maintains. “This is an unprecedented retreat from the CRTC’s established regulatory approach to accomplish its statutory objective of ensuring that the Canadian broadcasting system serves quality Canadian content to Canadian viewers,” the court document says. “It also constitutes a legally incorrect exercise of the CRTC’s licensing renewal discretion.” The June decision passed on a 3-2 vote with commissioners Caroline Simard and Monique Lafontaine both writing dissents from the majority ruling. The CMPA quotes extensively from the two dissenting commissioners in its brief to the Federal Court of Appeal. The organization is most upset by provisions that would allow the public broadcaster to move some of its obligations from linear TV to digital platforms. The possibility of such a ruling did not come up in the 2021 hearings into the CBC licence renewal, the CMPA pointed out. Even the Crown Corporation itself held the position that the current regulatory framework is necessary and reasonable. The CBC rejected a cross-platform expenditure approach and none of its private sector competitors advocated for one, the brief argues. The private broadcasters called for exhibition obligations alongside cross-platform expenditures. “The decision reflects the first time that a broadcast licensee’s digital media services have been considered in the licensing for its linear television services,” the CMPA stated. The ruling was made without consideration of prevailing policies or the effects of the Online Streaming Act. That act, known as bill C-11, is currently before the Senate. “The decision’s deregulatory programme will have significant deleterious impacts on the CRTC’s statutory objectives and arguably reflects an incorrect and unjustified weighing of the relevant policies,” the brief continues. "While the CRTC is entitled to broadly fashion appropriate licensing conditions to fulfill its mandate, it must consider how those licensing conditions will impinge on the various factors to be advanced by those conditions.” The ruling released the broadcaster from a critical mass of conditions of licence and did not create any replacements. It also strips the commission of its coercive powers to force compliance. Moving away from outcomes-based regulation makes it difficult for the CRTC and other stakeholders to determine if the CBC is following its obligations under the Broadcasting Act. “The decision eliminates minimum spending requirements for the CBC’s licensed television services,” the CMPA asserts. “Instead the CBC may spend as much of its annual budget as it chooses on its entirely unregulated online platforms during its next licence term.” Unlike its competition, the public broadcaster will not face obligations for showing Canadian programming, local programming and expenditures. The ruling also disadvantages the disabled community, the CMPA says. People with disabilities are less likely to have access to broadband, it argues, and cannot migrate to non-linear platforms. This same scenario affects children, the elderly and official minority language communities. Independently-produced Canadian programming could also disappear from the airwaves if the ruling is allowed to stand, the producers’ group says. Canadian films might also not be broadcast. The commission lacked the evidence to make the decision, the CMPA told the court. “In this case, there is simply no support in the record for the notion that the CBC will fulfill its ‘operational imperatives’ in the absence of mandatory conditions of licence,” the brief states. The CMPA has also filed an appeal to cabinet to overturn the CBC decision. Other groups, including the Public Interest Advocacy Centre, are also petitioning the government to reject the CRTC ruling. –Reporting by Paul Park at ppark@thewirereport.ca and editing by Michael Lee-Murphy at mleemurphy@thewirereport.ca

AG won’t fight CMPA’s application for leave to appeal CBC license

News | August 11, 2022

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AG won’t fight CMPA’s application for leave to appeal CBC license

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