The CRTC’s Latest Talk TV Decisions: Sweeping Change or Plus Ça Change?

Yesterday the CRTC announced the second phase of its Talk TV decisions (Blais Speech; Decision). The Commission’s efforts are being cast as a significant overhaul of the regulatory framework for TV in Canada, but are they?

Out with the Old (Maybe)

Cast against the anachronism of film and TV quotas forged in the 1920s when Canada was still a member of the British Empire and the CBC just coming into being a decade after that, followed by the Broadcasting Act of 1968, and a long chain of events ever since, Blais’ message was clear: the regulatory edifice built up over the past century must be cleared away. The 21st century is the “Age of Abundance”, and with people increasingly using broadband internet and mobile devices to access content from around the world, the time for change is now.

Some Significant Steps Forward

At the top of the list of things to be discarded are Canadian content quotas during daytime hours. In prime-time, half the hours must still be filled with Cancon while quotas for pay and specialty cable channels have been harmonized downwards to 35% versus their current range from 15-85%. Genre protection for specialty TV channels will be eliminated and licensing requirements for discretionary channels with less than 200,000 subscribers have been dropped.

These moves open room for new services to emerge and could make it easier for people to pick and pay for TV channels they want — depending on the next instalment of the CRTC’s “Talk TV” decision next week.

Another cornerstone of the CRTC’s new approach to TV is to go from protection to promotion, and from a focus on quantity to quality, it says. The CRTC wants to encourage the production of fewer but bigger budget, higher quality TV programs that it hopes can attract Canadian and global audiences. While such efforts have been in the works since the late 1990s, the greater sense of urgency attached to this goal and changes in the means to get there are new.

To such ends, two new pilot projects were announced to fund big budget productions. The Commission also encouraged the government to change the Canadian Media Fund so that financial support can be funnelled to fewer but larger production companies and without the requirement for them to have a licensing agreement in place with a broadcaster (read: Bell, Shaw, Rogers, Quebecor, or the CBC) — in essence cutting out the middleman and giving independent producers direct access to CMF financial support. There is also a push for more international co-productions, and to get the fruits of such efforts into as many foreign markets and as many distribution platforms as possible, from Netflix, to Apple, Amazon, and so on.

The CRTC also adopted measures that aim to help staunch the problems that have beset journalism in the past several years. To this end, TV news services will be required to dedicate at least 16 hours a day to original programming, maintain news bureaus in a least three regions outside their main live broadcast studio and to have the “ability to report on international events”. Given the fact that news budgets have been slashed across the country for years, one can hope that such measures may help to stem the tide.

Beware of Vested Interests Wrapping Themselves in the Flag and the Public Interest

In a world in which the forces of the status quo loom large, these changes will rattle some. Anticipating resistance from some well-established quarters, Blais took aim at those who would fight to turn-back the clock:

If you hear criticisms of our decisions ask yourself this question: Are the arguments advanced by these critics those of the public interest or are they rather those that find their true roots in private entitlement, dressed up to look like they are founded on the broader public interest? This town is full of lobbyists whose job it is to spin their client’s private interests into something else, to wrap themselves up, as it were, in the flag, and to puff about Parliament Hill with an air of shock and dismay.

Three Steps Backwards

If we stop the discussion here, then yesterday’s ruling appears to take on the industry and its’ phalanx of lobbyists in order to yank Canadian TV into the 21st century. However, other measures give cause pause for concern.

A Cull of Independent TV Production Companies is Needed

First among these is the CRTC’s view that too many independent television production companies exist, many of which are set up for one-off projects and then wound down. Pointing to an estimate that there are 900 such companies, the CRTC argues that

. . . This project-by-project system hinders growth and does not support the long-term health of the industry . . . . The current situation is no longer tenable. The production industry must move towards building sustainable, better capitalized production companies capable of monetizing the exploitation of their content over a longer period, in partnership with broadcasting services that have incentives to invest in content promotion.

Yet, stand back and questions immediately emerge. The idea that there are 900 firms appears inflated alongside the Canadian Media Production Association’s estimate that 350-400 such companies exist and that a quarter of them have been created for specific projects and wound down immediately afterwards. Moreover, about 20% of those firms account for 80% of the industry’s revenue.

The existence of a vast pool of precarious, short-term production outfits is the norm in the film and TV business, not just in Canada but LA, New York, Wellington, London, Mumbai, almost everywhere (see Tinic and Gasher). This has long been the case, not just in film and TV, but the publishing industry since the 16th century and across the cultural industries from the last half of the 20th century (see Miege and Thompson).

Finally, the CRTC’s notion that too many creators exist stands at odds with the idea that it is supposed to be fostering more diversity, not less. Moreover, it also sounds a lot like the tired old ‘national champion’ strategy which has created the highly concentrated telecoms and media industry and high levels of vertical integration that currently exist and which are the source of so many of the problems being faced today to begin with.

Tearing up the “Terms of Trade Agreements”

Yesterday’s decision discards the ‘terms of trade agreements’ between producers and the large vertically-integrated media companies – Bell, Shaw, Rogers, Quebecor – that were put in place in 2011 and 2012 after years of protracted negotiations. Consolidation has reduced the number of sources that producers can go to for financing, rights deals and distribution – the real levers of power in the ‘cultural industries’. The terms of trade agreements tried to offset this reality by creating standard terms of trade and a ‘use-it-or-lose-it” clause that required broadcasters to use the rights they acquired within a year or turn them back to the producer; international and merchandising rights were reserved for producers.

Disputes over such issues, especially for mobile and internet rights, continue. They were a cornerstone of license renewals in 2011 and 2012 and a key reason why many of the producer interests reluctantly signed off on Shaw’s acquisition of Global in 2010 and Bell’s take-over of CTV and Astral Media in 2011 and 2013, respectively. Discarding the ‘terms of trade’ deal is another victory for the vertically-integrated giants and a big loss for independent producers, as head of the CMPA, Michael Hennessy, intimated earlier today on Twitter.

Screenshot 2015-03-13 23.20.53

Vertical Integration and “Tied TV”

The CRTC also treads lightly when it comes to TV services delivered over the internet and mobile, such as Bell’s CraveTV and Shomi, a joint venture by Rogers and Shaw. Unlike Netflix, or HBO, CBS’s “all access”, and other services in the US, these services are not available to everyone in Canada over the internet but tied to a subscription to one of Bell or its partners’ (i.e. Telus and Eastlink) TV services in the case of Crave TV or to Rogers and Shaw’s internet or TV subscribers in the case of Shomi. They are defensive measures designed to protect Bell, Rogers and Shaw’s existing business models and the established TV “system” generally.

If the CRTC really wanted to disrupt the status quo then these attempts to leverage old ways of doing things into the emerging areas of distributing TV over the internet and mobile services would have been a primary target for action.

Instead of tackling the issue head-on, however, the ruling seems to skirt the issues by creating a new category — “exempt hybrid video-on-demand” model – intended to encourage companies to offer TV services to everyone over the internet without being required to subscribe to any of the companies’ other TV or internet services. In return, they could offer exclusive content and be relieved of obligations to fund and showcase Canadian content, as Figure 1 below shows. This is the same treatment that all stand-alone OTT services get under the Digital Media Exemption Order, but with the idea that such services could be distributed across the companies’ closed cable networks and the ‘open internet’ as well.

Video on Demand Services Source: CRTC (2015), The Way Forward, para 106.

Bell statement concluded that the decision will not change the way it offers CraveTV; Rogers has remained mum.

The ruling, however, puts the Public Interest Advocacy Centre and Consumers Association of Canada’s recent challenge against Crave TV and Shomi on the grounds that the services play fast and loose with the broadcasting and telecoms acts, as well as the CRTC’s Digital Media Exemption Order, on hold (see here). PIAC-CAC responded to the decision by saying that they

are skeptical today’s decision will have the effect of motivating Bell, and Rogers and Shaw, to make their content available online to every Canadian as a true ‘over-the-top’ service. . . . What today’s decision does not do is declare that Bell, Rogers and Shaw are such ‘hybrids,’ and therefore it appears that the commission will allow the closed, tied model to continue.

Plus Ça Change?

Reducing content quotas and eliminating genre protection are important departures from the past, while taking steps to foster better quality program production may produce fruit. The push to rationalize the TV production sector around fewer and more highly capitalized companies, tearing up the terms of trade agreement, and letting Bell, Rogers and Shaw’s ‘tied TV’ offerings off the hook, however, all appear to reinforce the power of well-established players who have pushed so hard to hold back the tides of change that the CRTC claims to be promoting.

David Wins Against Goliath: CRTC Bolsters “Net Neutrality”, Limits “Zero-Rating” & Strengthens Local TV

Today’s trilogy of CRTC decisions on “network neutrality”, local TV and simultaneous substitution are a huge win for Canadian citizens. They reinforce Canada’s network neutrality regime while backstopping local, over-the-air TV as a viable alternative to cable and satellite and as an important source of news and information.

Of the three decisions, the most important is probably the Mobile TV ruling. The decision responds to a complaint filed by Ben Klass with the Commission in late 2013 about Bell’s Mobile TV offering that allows Bell Mobility subscribers to access 10 hours of television programs for $5 per month while watching the same amount of TV on your wireless device from the CBC, YouTube or Netflix, for example, would cost up to $40 – an 800% difference. Klass’s complaint expanded in early 2014 after the Public Interest Advocacy Centre raised concerns about Rogers and Videotron’s Mobile TV services on much the same grounds. The CRTC then wrapped them into one proceeding. Today’s major decision supports Klass and PIAC’s claims.

In each case, watching television programs delivered over the internet on your mobile device from sources outside one of the carriers’ TV packages counted towards your data caps, while those inside their Mobile TV offerings did not.

Recognizing that they were likely fighting a losing battle, Rogers folded on the case last summer and Videotron began to phase out its preferentially priced Mobile TV service at the end of 2014. Bell soldiered on, however, claiming that despite being delivered over the internet and the same wireless networks as any other data, video, voice or internet services that subscribers might use, it’s Mobile TV service was not a telecom or internet service at all.

According to Bell, its Mobile TV service is a broadcasting service, and thus outside the reach of the charges that Klass and PIAC raised. Moreover, far from this being a bad thing, its Mobile TV service is making substantial contributions to the policy aims of the Broadcasting Act, Bell argued.

The CRTC’s decision resolutely rejects that claim. While the decision refers to Bell and Videotron’s Mobile TV services, since the latter has been phasing out the version of its service in question since the beginning of the year, the biggest impact of the decision will fall on Bell.

With respect to whether Mobile TV services are telecommunications or broadcast services, the Commission was crystal clear:

Bell Mobility and Videotron are . . . providing telecommunications services in regard to the transport of their mobile TV services to subscribers’ mobile devices, and are therefore subject to the Telecommunications Act (para 35).

In addition, the Commission is clear that far from being a good thing for Canadians and the aims of the Broadcasting Act, the services work a:

 . . . disadvantage to consumers in accessing other Canadian programs on their mobile devices, and . . . could not be said to further these [the Broadcasting Act] objectives (para 60).

Furthermore, Bell and Videotron’s claims about their Mobile TV services being good for Canadians lacked “quantifiable evidence to back the magnitude of those claims” (para 39).

Having found that the key issues revolved around telecommunications, the CRTC than turned to the heart of the matter: were the carriers giving their own Mobile TV services an advantage and, if so, was that advantage unreasonable? Again, the Commission is unequivocal. By charging one rate and exempting their own services from their data caps while charging much higher rates and applying data caps to all others, Bell and Videotron are giving themselves an unfair advantage.

Here’s the centerpiece of the decision in this regard:

Bell Mobility and Videotron, in providing the data connectivity and transport required for consumers to access the mobile TV services at substantially lower costs to those consumers relative to other audiovisual content services, have conferred upon consumers of their services, as well as upon their services, an undue and unreasonable preference, in violation of subsection 27(2) of the Telecommunications Act. In addition, they have subjected their subscribers who consume other audiovisual content services that are subject to data charges, and these other services, to an undue and unreasonable disadvantage, in violation of subsection 27(2) of the Telecommunications Act(Para 61).

Crucially, in making this decision, the CRTC saw the issues being raised by Klass and PIAC as something of a litmus test case, a test whose resolution would hold much in store for the evolution of the internet and the converging media ecology in the future. Again, as it says,

the preference given in relation to the transport of Bell Mobility’s and Videotron’s mobile TV services to subscribers’ mobile devices, and the corresponding disadvantage in relation to . . . other audiovisual content services available over the Internet, will grow and will have a material impact on consumers, and other audiovisual content services in particular. . . . [I]t may end up inhibiting the introduction and growth of other mobile TV services accessed over the Internet, which reduces innovation and consumer choice (para 58).

In short, the decision responds to current realities while looking to the future. It took the opportunity delivered up to it by a hard-working and careful student, Klass, and the additional effort by PIAC, to nip a problem in the bud. The fact that the issues raised complex issues today as well as for the years, even decades, ahead, also helps explain why this decision was more than a year in the making rather than the usual four months or so.

The Mobile TV decision effectively limits zero-rating in Canada, a practice where some internet content services pay to obtain fast lanes and exemption from carriers’ data caps. Doing so reinforces Canada’s strong “network neutrality” rules and places it shoulder-to-shoulder with other countries where zero-rating has been banned (e.g. Netherlands, Sweden, Chile) or discouraged and not practiced by wireless companies (e.g. Norway, Finland, Sweden, Estonia, Lithuania, Latvia, Malta and Iceland).

The upshot is an unambiguous win for strong “Network Neutrality/open internet” rules, including their unambiguous application to wireless internet access. As Blais put it, “the Mobile TV decision is all about Canadians having fair & equal access to content of their choice on internet. There will be no fast lanes & slow lanes”. It is about keeping control over what people access through the internet in their hands, not under the editorial control of ISPs and telecoms companies.

Three other things about the Mobile TV decision stand out.

First, it’s a message that Canada can send, with love, to the United States as the FCC gets set to decide in the next month on many of the same issues to replace its relatively weak ‘Open Internet’ principles that were tossed out by the courts in last year’s Verizon decision. With strong encouragement from Obama, the FCC is widely seen as leaning toward reinstating Title II common carrier classification for all broadband internet access providers – wireline, cable, wireless – and restricting zero-rating practices. This will reverse decisions taken in 2002, 2005 and 2007 under the Republican controlled FCC that redefined high speed internet access by cable, DSL and wireless as ‘information services’ and, thus, beyond the reach of the regulator.

Second, the CRTC decision rests entirely on the common carriage principle at the heart of the Telecommunications Act (namely sections 27 and, less so, 28) rather than its so-called network neutrality rules. This is a good thing because it returns the politics of the internet to sturdier ground, i.e. the centuries old and battle-tested grounds of common carriage versus the woollier notion of network neutrality.

Third, the concurring opinion of CRTC Commissioner Raj Shoan at the end of the decision is a must read. His ruminations on the ‘cone of silence’ around the issues raised by the Mobile TV proceeding reminds us that in an industry dominated by a handful of massive vertically-integrated companies who control access to distribution networks, content and audiences, a pervasive fear seems to have settled in amongst independent TV broadcasters, creators and others that appears to have kept them from stepping forward. It reminds us that the Canadian media industry is a tight and closed, if not so cozy, community where independent voices step forward at their own peril.

As Shoan observes, when “students, not-for-profits and charities have to contend against the deep pockets of large, national, vertically integrated entities in order to bring to light relevant issues of public interest without the support of affected parties (i.e. Canadian broadcasters)”, we are in trouble. The CRTC looked at that reality today squarely in the face and made three bold decisions that go someway to addressing the issues. We can be thankful to smart and interested citizens such as Ben Klass and public interest groups like PIAC for lighting the spark and all the hard work that led to today’s decision, and for groups such as Open Media for keeping these issues in the public eye. For all those who have stood as defenders of the status quo, indeed, often as their mouthpieces, it should be a message.

A few quick words on the other two decisions regarding keeping local television alive and simultaneous substitution.

First, Blais made it clear that maintaining local, over-the-air television is important to Canadians, as citizens, not just consumers. Why? Because that is where many of us still get a great deal of our news and information from. Blais did not mince words: the major TV companies have obtained enormous privileges, and it is time to meet their obligations. “An informed citizenry cannot be sacrificed on alter of corporate profits & debt reduction”, he intoned, in an implied reference to the steady flow of cut-backs and journalist lay-offs in an industry that has been allowed to bulk up through mergers and acquisitions on the promise that synergies would deliver benefits, not just to the corporate bottom line but to all Canadians. It’s time to deliver.

Local TV also needs to be kept alive because it provides a realistic alternative to cable, satellite and IPTV providers who have consistently raised prices far in excess of the rate of inflation. This is especially so because, as Greg Taylor, Steven May and others from Ryerson University, have made clear, Canada has recently completed the switch over to digital over-the-air television. The benefits of this now need to be nurtured rather than given a still birth by those whose loyalties are, at best, split between seeing things through versus protecting their cable, satellite and IPTV distribution networks, i.e. the same entities that own most of the local TV stations and the biggest cable, satellite and IPTV companies in Canada are one and the same: Bell, Shaw, Rogers and Quebecor. Brandishing updated bunny-ears as a prop, Blais encouraged Canadians to think about them as a viable option that was both free and of higher quality in terms of picture clarity.

There will be no new revenue stream from fee for carriage of local TV stations, a cornerstone of Bell’s submission to the Talk TV hearings. However, neither will one of the cornerstones that have supported the commercial viability of local TV since the 1970s be taken away: simultaneous substitution that allows Canadian broadcasters to substitute their commercials on US signals airing the same programs and carried by cable and satellite companies in Canada. The policy is a massive gift that delivers about a quarter-of-a billion dollars a year to the industry. This was a “big ask” for Bell, Shaw, Rogers and other television companies and, for all intents and purposes, they got it today from the CRTC, with the exception for the SuperBowl starting in 2016.

In sum, today’s CRTC decisions are bold. They send a clear message in support of an open internet, broadly interpreted to cover mobile wireless, cable and wireline networks. TV is not dead, and in fact, the evolution of the two are fundamentally intertwined, and need to be thought of as such. The CRTC’s decisions go a long way to doing just that. The decisions, in particular the open internet, Mobile TV and future of local TV parts, underscore the decisive role of independent voices, and the importance of listening to them, rather than just to incumbents and far too many scribes (but certainly not all) who think that relaying the views of rival media giants on a particular issue, and a financial analyst or two, to the Canadian public constitutes ‘balanced’ reporting.

No Regulatory Cherry-Picking Allowed: the CRTC vs. Netflix Clash @ the TalkTV Hearing


The final day of the CRTC’s hearing into the future of television saw a heated clash between CRTC chair Jean-Pierre Blais and online video distributor Netflix. It was a moment with few precedents, and one ripe with a myriad of fascinating questions (Netflix presentation here; CPAC coverage here).

The clash ignited when Blais’s request to Netflix’s Director of Global Public Policy, Corie Wright, to file information with the commission about the number of subscribers it has in Canada, its revenues in Canada and other information the company does not routinely disclose was met by much hesitance on Netflix’s part. As Wright repeatedly returned to concerns about confidentiality, Blais testily questioned whether Netflix did not trust the CRTC’s ability to deal fairly with companies’ request for confidentiality.

The problem, however, is that while Netflix demanded guarantees of confidentiality, it is the CRTC’s prerogative to determine whether such requests outweigh the public interest in disclosure. And in this regard, Blais refused to concede that prerogative while Netflix was equally intent on assuring confidentiality for information that it never gives out to anyone, no matter who asks.

While that may cut it when it comes to researchers and journalists, it won’t do in the context of a CRTC hearing that is, after all, a quasi-judicial proceeding with stringent legal standards about evidence. The point was made on the opening day of the “Talk TV” hearing as well when a similarly frustrated Blais encountered PR puffery from Google that hardly constituted robust evidence that could be used to shed light on anything other the company’s own interests and story that it’d like to tell the world.

This is not novel and is, indeed, well-established practice. Indeed, for all those who play in the regulatory arena, there is little more frustrating than the extensive use of the infamous hashtag (#) in instances that the CRTC has granted companies confidentiality over those who have sought disclosure. Indeed, for many, the problem is that the CRTC has been too generous in granting confidentiality over disclosure. So, to have Netflix say that it was seeking to pre-empt the question by having guarantees of confidentiality from the get go was beyond the pale, and Blais treated it as such.

So, where do these trade-offs between confidentiality and disclosure come from? Three places.

First, from the general tradition of regulated industries where the interest of the public in the matters at hand are always weighed against business demands – typically expansive – to keep their affairs private.

Second, the CRTC took up the issue in 2007 in a proceeding about just this issue where the Commission observes the following:

. . . [The CRTC] conducts its public processes in an open and transparent manner. In some instances, parties submit information in the course of proceedings for which they request confidentiality. . . . [O]ther parties to the proceeding may request public disclosure of the information. If such a request is granted, the information is put on the public record. If it is determined that the harm outweighs the public interest in disclosure, the request is denied and the information remains confidential.

Basically, Netflix was trying to force the CRTC into a corner today over this issue, and Blais was not having any of it.

Lastly, the CRTC’s Digital Media Exemption Order under which Netflix and other OTT providers operate in Canada albeit exempt from the normal requirements of the Broadcasting Act, makes it clear that such companies are required to submit information regarding their “activities in broadcasting in digital media, and such other information that is required by the Commission in order to monitor the development of broadcasting in digital media”.

Some may not like these requirements, but for the time being they are the rules of the game and having decided to play by the rules of the game since its entry into Canada in 2010, today’s hearing was not the right place for Netflix to challenge them.

We must remember that, since its first New Media Order in 1999, the CRTC has always claimed regulatory authority over television and other broadcasts delivered over the internet but has exempted them from the requirements of the Broadcast Act. It did so on grounds of technological neutrality, fostering creativity and innovation and that doing so would not prove disastrous to the Canadian “broadcast system”. In short, it is not whether the CRTC can regulate the internet broadcasting, as Michael Geist noted the other day, but will it? The answer has unambiguously been yes, the CRTC can regulate internet broadcasting, but will not for the time being. That was the answer in 1999, in 2009 and in its last statement on the matter, the Digital Media Exemption Order (2012).

Three final points. First, Netflix cannot cherry pick the elements of Canadian media and telecoms policy that serve it while cocking a snook at those elements it would rather not deal with. Netflix has been the beneficiary of the CRTC’s robust network neutrality rules, rules that apply both to wiredline telecoms and mobile wireless telecoms providers. This has been a huge benefit to Netflix, and partly on account of such measures its ability to locate its content caching equipment at Canadian telecoms and ISP providers such as Bell, Rogers, Telus and Shaw are a far cry easier in Canada than in the US. The forthcoming CRTC Mobile TV proceeding will help to determine the utility of these rules.

As Netflix does battle in the US at the FCC hearings now taking place over the future of network neutrality in that country, it would do well to recall the comparably better conditions it has in Canada. As Netflix itself noted today, Canada is its best international market and I would suggest that the combination of the CRTC’s network neutrality and light touch Digital Media Exemption Order help explain this state of affairs. As such, when the Commission asks for information and to trust that it will make the proper decision in weighing the company’s claims for confidentiality with the benefits of public disclosure, Netflix would do well to play ball.

Third, Netflix also needs to recognize that, faced with a wall of claims from incumbents for two week’s running that unregulated OTT services threaten the Canadian “television system” altogether, robust evidence could help put such self-serving claims in perspective and is just what the CRTC needs. Indeed, Netflix should meet the CRTC’s deadline for its orders for information of this Monday to help in just this regard, otherwise the CRTC will be left with much self-serving bluster about falling skies and doom and gloom.

Finally, it’s time to recognize that while I don’t personally think that Netflix should be subject to all of the requirements of the Broadcasting Act, this is no longer the days when technophiles could see the Internet as an unregulable space. Those days were always an illusion and, regardless, are over. There is a discussion to be had, and that discussion is already underway in many other countries around the world, as Netflix knows full well.

Outside Canada, the European Union’s Audiovisual Media Services Directive brought online video providers under its sway in 2010. The Dutch and France have also reportedly required it to torque its algorithms to give priority to local content and to contribute to the creation and circulation of television content from both countries and Europe as a whole.

Whether we agree with that or not, it’s now the discussion to be had, rather than ducked with gestures towards the internet as some kind of nirvana that exists outside the normal laws of the land. Neither Netflix, Google nor any other ‘digital media giant’ can escape this reality by invoking the internet as an world beyond regulation when they please while calling for network neutrality when that suits. What we all need to realize, is that an open media requires smart regulation not no regulation.

Arm’s Length or Strong Arming the CRTC?: Minister Moore’s “Mandate Letter” to CRTC Head Jean-Pierre Blais

Early in December a journalist from the Huffington Post, Althia Raj, contacted me about a letter that she had turned up through an access to information request. Sent by then Heritage Minister James Moore to the, at the time, new chair of the CRTC, Jean-Pierre Blais, on his first day on the job (June 18, 2012) the letter lays out what is expected of the incoming chair in a surprising amount of detail, despite the fact that the CRTC is suppose to be independent from the government-of-the-day.  

In this so called “mandate letter”, Moore lays out a number of “issues of mutual interest” that he hopes he and Blais “can work together on”, while remaining mindful of the fact that whatever cooperation does occur must “maintain[] an appropriate level of distance between our two organizations”.

After initially reading the letter, I was struck by how much I agreed with many of its goals:

  • more room for consumer participation in CRTC proceedings is needed, Moore tells Blais;
  • the Commission needs to “comprehensively address consumer affordability and service complaints”;
  • “consumers should have access to more programming choices and affordable choices across all distribution platforms” (radio, television, broadband networks and mobile devices);
  • more “competition, investment, innovation and consumer choices” is needed in telecommunications services, and all with a light regulatory touch but with a keen eye on “consumer protection and participation”.

While I like the broad contours of the letter, however, I also think it is unusual, and deeply problematic. Why?

First, because there is no precedent, to my knowledge, of a Minister sending a ‘mandate letter’ to a new head of the CRTC laying out what is expected of them.

Second, a ‘mandate letter’ has no basis in the Broadcasting Act (1991) (sections 7-8, 15, 26-28) or the Telecommunications Act (1993) (sections 8, 9 and 12) – the two main pieces of legislation that apply in such matters.  Both laws give Cabinet broad powers to issue policy directions and to review, vary and overturn CRTC rulings (Orders-in-Council), but they do not give the Minister authority to do any of these things, or to send a letter telling an incoming chair of the CRTC what the Minister expects of him or her. 

Third, while the Minister tries to straddle the awkward zone between respecting the CRTC’s independence and framing a mandate around ‘mutual interests’, the very existence of the letter casts doubt on the regulator’s autonomy. As a result, it is impossible to know for certain whether the CRTC’s newfound standing as a champion of the Canadian consumer on Blais’ watch is the fruit of consumer friendly decisions that have rankled incumbent interests, or the unintended prize of serving up just what the Minister ordered?

Three high-profile decisions in particular have defined Blais tenure to date but they could just as easily be seen as fulfilling the requirements of the mandate letter:

  •  the CRTC’s flat out rejection of BCE’s first bid to take-over Astral Media in October 2012;
  • the adoption of a National Wireless Code that came into affect in December;
  • the recently launched inquiry into wholesale mobile wireless roaming rates at the end of December 2013 after its fact-finding mission found the Big 3 – Rogers, Telus and Bell – to be “charging or proposing to charge significantly higher rates in their wholesale roaming arrangements with other Canadian carriers than in their arrangements with U.S.-based carriers.”

Blais seemed to wince when Raj raised the notion that perhaps he was just following orders rather than marching to his own drum. However, he also worked hard to parry the appearance that the CRTC’s might be being used for partisan ends. He had to because, ultimately, the legitimacy of the regulator depends on being seen and believed to be independent from the government.

I do not think that Blais is doing the Minister’s bidding. However, it is naïve to not see the problem here. It is also naive not to see Blais and Moore as at least rowing in the same direction on the ‘consumer friendly’ approach to telecom and media regulation.

The consumer focus of the Conservative Government is real, and Blais appears to have little trouble with that. There is also no doubt that the Government chose Blais because it sees him as ideologically allied with them, and probably because of the close relationship that he and Moore cultivated when the former was a copyright lawyer at Heritage – Moore’s former home turf.

All of this should have been enough without the Minister firing off a letter that only raises doubts about the CRTC’s autonomy while at the same time being of doubtful legal standing or even effectiveness. Furthermore, the letter reinforces views that the Harper Government keeps bureaucrats on a short-leash, while the fact that the letter only turned up through an access to information request only furthers notions that the government prefers to rule in secret rather than in the light of day.   

Curious to know what others thought about this, I canvassed scholars, lawyers and former high-ranking bureaucrats to find out what they thought. None of them has ever seen a ‘mandate letter’ before, but could imagine such a thing, as their replies reproduced below show. Their views about whether such a thing was a good or bad thing are mixed. 

David Skinner, Professor, Communication Studies Program, York University.

This sounds intriguing (and problematic). I have never heard of such a thing before. Perhaps obvious suggestions, but have you asked Liora Salter or Konrad von Finckenstein? It would be interesting to know if there is something here and who/what party “invented” it.

Konrad von Finckenstein, former chair of the CRTC (2007-2012), head of the Competition Bureau (1997-2003), Justice of the Federal Court (2003-2007) and now an independent arbitrator of Canadian and international business disputes.

The letter to Blais was indeed unprecedented. Like you I have no problem with the general contours. Strictly speaking it should have taken the form of a direction to the CRTC like the government did on forbearance for instance. Instead they used the more informal letter carefully saying “should” instead of “shall” thereby leaving some leeway to the Commission to differ with the expectations expressed in the letter as it sees fit to do so.

Frankly, I think the letter is useful. It shows a delineation of the government’ s overall policy and will avoid any unintentional conflict between the Minister and CRTC yet leaves the CRTC open to go a different way, if it feels circumstances warrant, and allows it to spell out in detail, in an preemptory defense, why it took the decision. Personally as chairman I would have preferred such a letter to the sudden criticism that resulted when the CRTC took a decision the government did not agree with.

By the way you might want to file an access to information request to see if a similar letter regarding broadcasting was sent by Minister Glover to the chair.

Jon Festinger, Q.C., media, regulatory and corporate lawyer and a faculty member of the Centre for Digital Media in Vancouver. He also teaches law at the UBC Law School and Thompson Rivers University.

Having practiced regulatory law for much of my career […], I can say that I have never heard of a “mandate letter”. More interesting than my opinion is that of Sheridan Scott former counsel to the Commission and past Commissioner of Competition, heading the Competition Bureau of Canada. Sheridan very recently spoke to my class at UBC Law (Video Game Law) on the intersections of policy, politics & Law. She expressed her opinions and surprise on the subject of procedures being followed by cabinet vis-a-vis the Commission, if memory serves. You can find video of Sheridan’s talk here. Her talk starts at 1:03:44.

Sheridan Scott, co-chair of the competition practice at Bennett Jones LLP and Canada’s Commissioner of Competition from 2004 to 2009 and Chief Regulatory Officer of Bell Canada before that.

I also believe that this sort of letter is unprecedented but my reaction to it is generally positive. I have always been in favour of policy directions rather than Cabinet appeals, since they necessarily speak to general rather than case-specific issues.  While a letter such is this is not the same as a policy direction, and is not subject to the same procedural safeguards, I would nonetheless see it as providing useful context to a regulator that operates at arm’s length but not in a complete vacuum.  I do not think that it in any way forces the CRTC down a specific road:  it instead provides some useful considerations to be aware of in carrying out their statutory mandate. 

In the telecom side this direction is nothing more or less than the Policy Direction issued several years ago, so nothing new.  On the broadcasting side, there is more guidance but the wording is quite general.  Obviously there are many ways for the Commission to provide access to more programming choices and affordable choices and this letter does not prejudge or dictate any of these.  Nor are these unusual goals to identify:  the CRTC itself often indicates that its decisions are aimed at increasing programming choices and affordability.  As far as providing consumer access to broadcasting hearings, this is also something the CRTC has tried to do especially under Konrad’s direction, when benefits monies were diverted for this purpose. 

If there is one thing I find disappointing about the letter, it is the failure of the government to say anything about the importance of Canadian content.  Fostering the development of Canadian content and encouraging its accessibility were clearly amongst the original intentions of the legislators and lie at the heart of the legislation, as the Supreme Court of Canada has recently suggested.  This letter can’t change that and indeed it suggests the Commission should be mindful of the original intent.   

In sum, while this sort of letter is unusual it does not to my mind constrain the CRTC in any material way and provides additional context for the Commission to consider.  In any event, I’m not sure there is much of a remedy if the CRTC fails to take any steps in these directions.  The government can’t issue a policy direction to apply to past policy decisions (though it could issue a direction to influence decisions on a forward looking basis) and on the broadcasting side Cabinet appeals are limited to decisions to issue, amend or renew broadcasting licences only.  The scope of Cabinet appeals is broader on the telecom side, and I think this type of ministerial communication is definitely preferable to tweeting what the Cabinet is likely to do on appeal, before the CRTC has taken a decision, as we have seen in the past.  And in any event, there is already a Policy Direction in place, and the letter does nothing but confirm this.

Anonymous former senior bureaucrat:

I have also heard from several communications law experts. The consensus view is that the letter walks a fine line — likely inappropriate but not illegal. In the so-called “arm’s length” relationship, the length of the arm has never been fixed — but in this interaction it appears to be very short. 

With respect to telecoms, the letter references the Policy Direction which is public and in force, so that’s a wash.

For broadcasting, the letter, combined with the Section 15 Order, is certainly relevant to anyone participating in the CRTC’s consultation on the future of television. Unlike the S.15 Order, the letter cannot in any way be considered binding on the Commission or the Chair. However, the letter gives the appearance of constraining the CRTC’s discretion because, ultimately, the government could intervene by way of a formal policy direction if the CRTC’s outcome were contrary to the views expressed by the Minister. So arguably this is setting policy by stealth — without the government having to take on the responsibility and suffer the onerous public and parliamentary process of issuing a formal policy direction as set out in the Broadcasting Act. In this context, the letter’s release under access to information may be way of managing expectations of interested parties — especially those with a vested interest in the status quo.

When the current Broadcasting Act was being debated in Parliament, the main criticism of the proposed Governor-in-Council power to issue policy directions was precisely this outcome — that the mere existence of the power would so change the relationship between the CRTC and the government of the day that the government would be able to get away with telling the CRTC what it wants without having recourse to the process set out in the Act. This outcome, it was feared, would undermine the independence of the regulator much more significantly than any actual use of the power as set out in law. Since the Act was passed in 1991, this letter is the first documented instance of this criticism and concern having been borne out.  

Clearly, Moore’s letter to Blais raises fundamental issues about the independence of the CRTC. While views differ over the appropriateness of the letter, nobody thinks the ‘mandate letter’ is business as usual. 

One thing that emerges from these responses is the sense that regulators have been blind-sided by already high-levels of intervention in the CRTC’s affairs. This was notably the case when then Industry Minister Tony Clement announced, by all things, a tweet that the CRTC’s Usage-Based Billing decision in 2010 would be overturned if the Commission did not go back to the drawing board on its own accord. Duly warned, von Finckenstein ordered the CRTC staff back to the drawing board; a more palatable wholesale bandwidth access rate followed the next year.   

Rather than continuing to be blind-sided, it’s not surprising that those closest to the fray – von Finckenstein and Scott, notably – think that giving the government even more powers to issue ‘mandate letters’ might offer greater clarity. Indeed, with a mandate letter in hand all might be clear and no one would be sent back to the drawing board by tweets issued in the middle of the night.

That is understandable, but I have my doubts. Anonymous, it appears, who I can assure is no stranger to these matters, is not so sure either.

I worry that grafting more powers on the extensive ones the government already has will only further eliminate whatever independence the Commission still retains.

Regardless of which of these views is correct, one thing is clear: ‘mandate letters’ are not ‘business-as-usual’. Things need to change, but just how remains up for grabs. Until they do, however, the independence so essential to the CRTC’s legitimacy and, the public’s trust in it, will remain on shaky ground, and for good reason.    

Glitch in the Matrix or Twitter Take-Down?: An Open Letter to Twitter

Dear Kirstine Stewart (Twitter Ppl),

Hello. My name is Dr. Dwayne Winseck, and I’m a professor at the School of Journalism and Communication, Carleton University, Ottawa, Canada. 

Two weekends ago I had an unpleasant experience — and a suspect one of that – in which my Twitter account was temporarily suspended (#14558974 Twitter Support: update on “CDN University Prof Wonders Why Account Suspended”).

Luckily, through the intermediary of well-known Canadian Internet lawyer Michael Geist my ‘ticket” was brought to the attention of someone who was, until very recently, very high up at Twitter. That person is also someone I admire greatly. Because she/he helped me out so much I’d rather not bring any more trouble to their doorstep, so I shall leave them nameless. Nameless moved my ticket up the ladder within your organization, fast, and by late Sunday afternoon my account was restored.   

For all this, I am very thankful. And more to the point, it confirmed my belief that, when faced with tough situations — much tougher than mine — Twitter bends over backwards to do the right thing. This is a point that I’ve made in the past on my blog, notably in a post called, yes, US Subpeona: Twitter Does the Right Thing and several other posts on what I call the Twitter – Wikileaks cases (see herehere andhere).

I’ve also written on this topic for my column at the Globe and Mail, a column that I still hold but no longer use because of frustrations with the abysmal coverage the paper gives to the telecom and media business here in Canada, at least from where I sit. I wrote a column for the Globe and Mail after interviewing Icelandic MP, Birgitta Jonsdottir, and target of the US Department of Justice’s attempt to have Twitter disclose her and two others’ (Ron Gongrijp and Jacob Applebaum) account information in relation to the DoJ’s ongoing investigation of Wikileaks (see here).  

Of course, my skirmishes with the big three Cellcos — Rogers, Bell and Telus – in Canada, around which all of this stuff revolves (see below), pales in significance with the Twitter — Wikileaks case. The principle, however, that Twitter stands up for, and at the very least discloses the machinations behind the scenes that implicates its users, is similar.

It is possible, as my colleague and Associate Director at the School of Journalism and Communication, Joshua Greenberg, noted on Twitter the night my account was taken down, that all of this is due to a “Glitch in the Matrix”. However, as he also noted, it could be “punishment for industry criticism”.

Josh Greenberg ‏@josh_greenberg 24 Nov

Appears colleague @mediamorphis has had his @twitter acct arbitrarily suspended. Glitch in the Matrix or punishment for industry criticism?

It is also possible that I have crossed a line. There is no doubt that some of what I have said has been heated, and pointed, albeit I believe with toes standing close to or even on the line but not over it. Even good friends have counseled caution in this regard, but it would be helpful to know on which side of the line I stand, using Twitter’s terms of service as our guide (see Twitter Rules).

There are likely other possibilities that I haven’t contemplated, and I am keeping an open mind. However, as I stated at the outset, while I am very happy that my account was restored quickly, there are several important questions that still hang in the air, such as:

  1. Was the temporary suspension a ‘glitch in the machine’, or payback instigated by disgruntled targets of my criticism who took advantage of Twitter’s “report spam” function?
  2. Either way, what did Twitter find when it investigated my account and made the decision to restore it, and could you let me know the results of your investigation?
  3. What steps is Twitter taking to ensure that its ‘report spam’ and other features cannot be abused to silence one’s adversaries, or at the very least that such potentials for abuse are being minimized?

I believe these are important questions and I hope you can find the time to address them.

They are important not just to me but to all Twitter users who use your service as a valuable medium of public and, yes, political discourse. That this is so can be gathered, for example, from a post at specialized online forum that deals with mobile wireless issues, Howardforums: The Curious Case of the Suspended Twitter Account. Canada’s premier internet rights and freedom group, Open Media, reposted a modified version of that account on its website: Carleton Professsor Criticizes Canadian Telecom Industry, Gets Twitter Account Suspended.

The issues involved are also important because, sadly, my case is not an anomaly. There are, in fact, several instances in Canada – and likely elsewhere in the world where you are active – where people who are politically active — and reasonably and responsibly so — have found themselves in similar situations.

Critically, not everybody is as fortunate as I am to have immensely supportive colleagues, friends and Twitter followers, to say nothing of high-powered connections of the likes of Michael Geist, and through him, to the very top of the chain at Twitter, to set things aright in quick order. For all involved, we need to know, what is Twitter doing to ensure that it continues to do the right thing?

I have tried repeatedly to directly tweet Kirstine on this matter, as have several others, but with no reply as of yet. After many repeated attempts I thought I would spell it out here in full.

Lastly, that this is a matter of serious public discussion is underscored by the fact that the original report that I authored, and which opened up the windy path to these events, was delivered at one of the Canadian telecom industry’s premier annual conferences, the International Institute of Communication, held at the Ottawa Convention Centre, November 17-18, 2013. A link to the press release put out by Carleton University announcing the original report, Mobile Wireless in Canada: Recognizing the Problems and Approaching Solutions, can be found here, with links embedded to the original report itself.

Of course, I was fully aware that the report would touch a nerve, but what has followed, not just in the ‘mysterious case of the suspended Twitter account’, but across a wide range of matters too long to list, has been wholly unexpected.

As Mark Twain once said, I set out to write you a short letter but I did not have the time so I wrote you a long one instead.

I look forward to hearing back from you at your earliest convenience. I can be reached at, via Twitter @mediamorphis or the old-fashioned way by landline to my office: 613 520-2600 x. 7525.

Dwayne Winseck, Ph.D.

Professor, School of Journalism and Communication,

Carleton University, Ottawa, Canada

Carleton Study Challenges Claims of Big Wireless Players and Promotes Need for Maverick Brands

Cross posted from Carleton University homepage.

Well, this is a bit of a cheat, but Steven Reid at Carleton University did such a great job conveying the central message of a new report that we put out at the Canadian Media Concentration Research Project that I thought I’d just crib the whole thing and re-post it here. Thanks Steve.

Steven’s wordsmithing follows:

Carleton University’s Canadian Media Concentration Research project, directed by Dwayne Winseck of the School of Journalism and Communication, has released a report entitled Mobile Wireless in Canada: Recognizing the Problems and Approaching Solutions. The study outlines the state of wireless competition and concentration in Canada in relation to 57 countries worldwide, covering a period of three decades.

“The deep divide between the wireless industry and the government that has erupted over the latter’s attempt to reduce domestic and international roaming charges and foster more competition is the focus of the study,” said Winseck. “The study challenges the industry’s claim that there is no competition problem in Canada and emphasizes the importance of maverick brands that extend the market to those at the lower end of the income scale – women and others who are otherwise neglected by the well-established wireless players.”

The report supports the assertion that mobile wireless markets in Canada are not competitive. It offers a comprehensive, long-term body of evidence that places trends in Canada in an international context. The study shows that Canada shares a similar condition with almost all countries that were studied: high levels of concentration in mobile wireless markets.

The difference between the wireless situation in Canada and elsewhere is the lack of resolve to do anything about this state of affairs said Winseck. The study concludes that Canada’s situation is not promising, although there are some bright spots on the horizon.

“For the time being, the tendency is to deny reality, even when incontrovertible evidence stares observers in the face,” said Winseck. “This, however, is symptomatic of a bigger problem, namely that in Canada the circles involved in discussing wireless issues are exceedingly small and they like to hear the sound of one another’s voices. Their members do not look kindly on those who might rock the tight oligopoly that has ruled the industry from the get-go.”

The study highlights the importance of emerging maverick brands like T-Mobile in the U.S., Hutchison 3G in the U.K., Hot Mobile and Golan Telecom in Isreal, and Iliad and Free in France.

Maverick brands have many things in common:

  • All have faced aggressive incumbents and they tend to disrupt the status quo, pushing down prices, driving massive growth in contract-free wireless plans and unlocking phones.
  • They have relied on the state for a fundamental public resource that underpins the entire mobile wireless setup: spectrum.

Incumbents have fought against new wireless companies, challenging governments in an attempt to preserve their domination of the spectrum. In Canada, three companies currently hold 90 per cent of the spectrum: Rogers (41 per cent), Telus (25 per cent) and Bell (24 per cent).

The study shows that compared to the countries included in the study:

  • Wireless markets in Canada, regardless of how they are measured, are remarkably concentrated;
  • Canadians are first in terms of time the spent on the Internet, GBs of data uploaded and downloaded, smartphone data sent and received etc.;
  • Canada is highly ranked when it comes to capital investment in its wireline infrastructure, but lags in wireless investment.

“Whether or not people get the media, wireless and Internet capabilities they need to live, love and thrive in the 21st century depends on making the right choices now,” said Winseck. “Those choices are staring Canadians in the face. How we act, and how our government moves ahead, will set the baseline for how mobile wireless media in this country will evolve for the next two decades – the length of the licences being awarded in the upcoming 700 MHz spectrum auction – and probably for a lot longer than that.”

An executive summary of this study can be found at:

The full report can be viewed at:

Growth and Concentration Trends in the English-language Network Media Economy in Canada, 2000-2012

This is the fourth post in a series on the state of the media, telecom and internet industries in Canada and has been cross-posted from the Canadian Media Concentration Research project website. It focuses on the growth of and concentration trends in ten sectors of these industries in the predominantly English-language speaking regions of Canada from 2000 until 2012: wireline telecoms, mobile wireless, internet access, broadcast TV, pay and specialty TV, total television, radio, newspapers, magazines and online (see herehere and here for the last three posts in this series) (for a downloadable PDF version of this post please click here).

The data and methodology underpinning the analysis can be found at the following links: Media Industry DataSources and Explanatory NotesEnglish-language Media EconomyCR and HHI English Media, and the CMCR Project’s Methodology Primary.

The Growth of the English-Language Network Media Economy, 2000-2012.

As with the rest of Canada, the English-language media economy expanded greatly from $31.7 billion in 2000 to $55.8 billion in 2012. Figure 1 below shows the trends over time.

Figure 1: The Growth of the English-Language Network Media Economy, 2000-2012 (Millions $)

Figure 1

SourcesEnglish-language Media EconomySources and Explanatory Notes.

The fastest growing sectors of the English-language media economy have been internet advertising (2,782%), internet access (284%), mobile wireless services (284%), cable, satellite and IPTV (103%) and television (74%). The rapid growth of mobile wireless, internet access and cable, satellite and IPTV are leading to an ever more internet- and mobile wireless-centric media ecology, hence the notion of the network media ecology. For the most part, these trends are similar to patterns in the French-speaking regions of Canada.

At the opposite end of the spectrum, revenue for wireline telecoms has fallen by nearly a quarter since 2000. Newspaper and magazine revenues also seem to have peaked in 2008, and have fallen since then from $4.9 billion to $4.3 billion last year – a drop of 13%.

One crucial thing distinguishes English-language dailies from their French counterparts: paywalls. Two out of ten French-language dailies – Quebecor’s Le Journal de Montréal and Le Journal de Québec – have put up paywalls that limit readership to paid subscribers only (albeit with a soft cap that allows several free articles per month). For the English-language daily press, in contrast, twenty-four dailies accounting for two-thirds of average daily circulation are now behind paywalls.

All of the major English-language daily newspaper ownership groups have put paywalls into place over the last two years. Brunswick News (Irvings) led the charge in early 2011, followed by Postmedia (May 2011), Quebecor (September 2011), the Globe and Mail (October 2012) and the Toronto Star (August 2013). Many smaller papers are testing the waters as well (Glacier, Transcontinental and Halifax News). There are no hold-outs among the English-language daily newspapers equivalent to the role played by Power Corporation’s La Presse group of papers in Quebec.

While it is difficult to say exactly what accounts for this contrast, the fact that the CBC plays a much smaller role in English-language regions of the country compared to its place within the Quebec media landscape, probably explains much of it. As the fifth largest player with over 5% market share in Quebec, Radio Canada/CBC has maintained a large place for the public service model of news within the French-media ecology, whereas the CBC’s seventh place rank and two percent share of the English-language market means that it is correspondingly easier to carve out a near universal role for the commercial news model (see Picard and Toughill). Recent statements by the Globe and Mail about its target audience being households with more than $100,000 in income demonstrate exactly the kind of market failure that makes news a public good to begin with.

Radio still constitutes an important medium within the media ecology and actually grew significantly from 2000 to 2012, with revenues rising from $1070 million to $1,600 million. While revenues dropped for the two years following the financial crisis of 2008, the medium appears to be more resilient than many might have once thought, with revenues increasing ever since and reaching an all-time high last year – a pattern that mirrors trends worldwide.

As I have pointed out many times, the economic fate of the media hinges tightly on the state of the economy in general (see PicardGarnhamMiege). This can be seen in Figure 1, which shows how the growth of several media flat-lined, declined and sometimes even dropped steeply after the onset of the “great financial crisis. Even fast growing segments like mobile wirelessinternet access and total TV were not immune to this, while growth for cable, satellite and IPTV tapered off considerably.

Figure 2 below gives a snapshot of the patterns of growth, stagnation and decline that have taken place within different media sectors since 2000.

Figure 2: Growth, Stagnation and Decline in the English-language Media Economy, 2000-2012

Figure 2

Leading Telecoms, Media and Internet Companies in the English-Language Media Economy

The following paragraphs shift gears to look at the biggest media, telecoms and internet companies in the English-language media. Figure 1 sets the baseline by ranking the sixteen largest media, internet and telecom companies in these areas based on revenues and market share.

Figure 3: Leading Media, Internet and Telecoms Companies in English-Language Markets, 2012

Leading English Media Economy

SourcesMedia Industry DataEnglish-language Media EconomySources and Explanatory Notes.

As Figure 3 shows, Bell is the biggest player by a significant stretch, accounting for just under a quarter of all revenue. In Quebec, it was also the largest player, with an even larger one-third share across the French-language mediascape. It’s share of the national market is 28%.

The two biggest companies – Bell and Rogers — account for 43% of all revenues; the “big four” for 70%: Bell, Rogers, Shaw and Telus. Three of these four companies — Bell, Rogers and Shaw — are vertically-integrated giants, and their reach, as Figure 1 shows, stretches across the sweep of the English-language mediascape.

Quebecor – the fourth biggest media conglomerate in Canada, hardly registers at all, ranking 13th with one percent share of revenues. Its dominance is limited to Quebec. Telus is not vertically-integrated at all, eschewing the idea that telephone companies need to own content to be effective players within the network media industries.

Bell, Rogers, Shaw and Telus’ control over communications infrastructure (content delivery) is the fulcrum of their business. Given the massively larger scale of these sectors relative to media content it is not surprising that these four firms rank at the top of the list. Their stakes in content media, while extensive, are modest; Telus is not in the content business at all beyond acquiring rights for its IPTV service, Optik TV and mobile TV.

As Figure 4 shows, between two-thirds and 100 percent of the big four’s business comes from control over connectivity and content delivery rather than content creation.

Figure 4: Content Delivery versus Content Creation

Content Creation v Content Delivery (2012)

Content media are but ornaments on the carrier’s organizational structure, but they are being used to drive the take-up of mobile wireless services, broadband internet as well as cable, satellite and IPTV services, as telecom and internet gear makers like Sandvine and Cisco, and the International Federation of Phonographic Industries all observe. Illustrating this point, half the advertised roster of Bell’s Mobile TV service is filled with tv networks and specialty tv channels it owns: CTV, CTV News Channel, CTV Two, Business News Network, Comedy Network, Comedy Time, MTV, NBA TV, NHL Centre Ice, RDI, RDS, RDS2 and TSN, TSN2. Whether it ties this control over content and the means of delivering it to our doorsteps and into the palms of our hands in ways that confer preferential benefits on its own services at the expense of other content media and platform media providers and, ultimately, users, is an open question that merits further investigation.

While Bell, Rogers, Shaw and Telus tower over their peers, a dozen or so smaller entities fill out the field: MTS, Google, CBC, Torstar, SaskTel, Cogeco, Postmedia, Eastlink, Quebecor, Astral (before it was acquired by Bell in 2013), the Globe and Mail as well as newspaper and magazine publisher Transcontinental.  Several things stand out from the list.

First, these companies’ revenues and market shares are less than a tenth of the corresponding figures for the big four. Second, second-tier firms, except Quebecor, are either in the content delivery business or the business of making content, but not both. In other words, they are not vertically-integrated, and depending upon which side they stand, this leaves them vulnerable to the three vertically-integrated goliaths when it comes to gaining access to either content, carriage or audiences, hence the interminable disputes over access to all three resources (see hereherehereherehere and here for a sample of such disputes).

Third, with estimated revenue of $1,274 million from English-language markets in 2012, Google is a very big player and ranks sixth on the list. Facebook and Netflix, on the other hand, rank 17th and 18th on the list, based on estimated revenues of $182.3 and $114.2 million, respectively, and market shares of .2 and .3 percent. They are not big players on the Canadian mediascape.

The CBC still plays a significant role in English language markets, but it is steadily losing ground. At the outset of the 21st century, it accounted for about 30% of all TV revenue; today that number has been cut in half. Today, Bell and Shaw stand where the CBC stood a dozen years ago, with revenues and market shares nearly double those of the CBC.

In radio the CBC has slipped precipitously. Whereas it stood out within the field in 2004, by 2012 it was on an equal footing with Astral, Rogers and Shaw/Corus, each with between 11 and 14% market share. In English-language regions of the country, it is clear that public service core media have shrunk while the role of the market has expanded enormously.

Concentration in the English-language Network Media Economy, 2000-2012

Beyond the individual companies and their ranking, the most notable point with respect to the English-language media is that concentration levels are lower than in Quebec. While the HHI across all segments of the media combined in Quebec is at the moderate end of the scale at 1,800, in English-language markets it is 1,300 and at the low end of the scale, when we take the media as one large undifferentiated whole.

That, however, is the endpoint of analysis rather than the starting point, and it is essential to climb down from this view from the tree-tops to examine things sector-by-sector and then by broader categories (i.e platform media, content media, online media) before arriving at conclusions for the network media economy as a whole. And it should also be noted that while the HHI score is at the low end of the scale for the network media, the CR4 is not; the “big four” accounted for 70% of all revenues in 2012, as noted earlier – the same level as in French-language markets.

While Bell, Rogers, Shaw and Telus are top-ranked players in many of the sectors they operate in, none are dominant in all sectors. Table 1 below illustrates the point.

Table 1: Rankings of the Big Four by Media

Table 1

The Platform Media Industries

Figures 5 and 6, below, depicts the trends with respect to concentration levels over time for the platform media industries within the English-language media economy based on Concentration Ratios (CR4) and the Herfindhahl – Hirschman Index (HHI) (see methodology review in the second post in this series and the CMCR project’s methodology primer). Unlike the French-language media sectors assessed in the last post, the results are more mixed.

Figure 5: CR4 Scores for the Platform Media Industries in the English-language Media Economy, 2000-2012

Figure 5

Sources: CMCR Project CR and HHI English-language Media.

Figure 6: HHI Scores for the Platform Media Industries in the English-language Media Economy, 2000-2012

Figure 6

 Sources: CMCR Project CR and HHI English-language Media.

As Figure 5 shows, all of the English-language platform media industries, except internet access, are very concentrated on the basis of the CR4 measure. Indeed, using the CR4 measure, concentration in each of these areas is similar to levels in Quebec, except for internet access, which is less concentrated in English-language parts of the country than in Quebec. While there has been some fluctuation over time, and a recent dip for wireless and cable, satellite and IPTV providers, there is no long term, significant decline concentration levels across the platform media industries.

The HHI measure provides a more discriminating view, indicating that wireline and wireless are firmly within the ‘highly concentrated’ range, while cable, satellite and IPTV fell just under the threshold for that designation. In general, concentration in each of these sectors rose in the early 2000s, peaked between 2004 and 2008, and drift downward slowly thereafter. Every segment of the platform media industries, except wireless, is significantly less concentrated than in Quebec.

The first thing to note with respect to mobile wireless service is that is the most concentrated of all sectors reviewed. Second, the English-language market is more concentrated than in Quebec, with the recent downward drift slower in English-language markets than in French-language ones. The most important point in both cases is that concentration is and always has been “astonishingly high”, as Eli Noam has recently noted in relation to trends around the world.

New entrant’s – Wind, Mobilicity and Public – have gained ground since entering in 2008, but they do not pose a challenge similar to Quebecor/Videotron in Quebec. As a result, Rogers (37%), Telus (29%) and Bell (26%) still dominate English-language markets, with 95% of wireless revenues. An HHI score of 2922 underscores the key point: concentration remains firmly at the upper ends of the scale.

Internet access, in contrast, is the least concentrated of the platform media and un-concentrated by the standards of the HHI, with a score of 1024 and only modestly so by the criteria of the CR method. Concentration levels rose steadily during the first decade of the 21st century but remained low in comparison to other segments of the platform media industries. They have also modestly declined since 2010.

However, the reality on the ground is that when we look closely at the local level, 93% of residential internet users subscribe either to an incumbent cable or telecom company, according to the CRTC ‘s Communication Monitoring Report, pp. 143-144). In other words, seen from afar, internet access looks remarkably competitive, but up close, it is effectively a duopoly.

In terms of broadcast distribution markets (BDUs), IPTV services have steadily grown to become more significant rivals to the cable and satellite companies. CR4 and HHI scores have fallen as result since reaching their all time high in 2004, but still remain towards the high end of the scale with a CR4 of 88% and an HHI of 2400 — just beneath the threshold for highly concentrated markets.

Figure 7 below shows the market share and relative size of each of the main BDU players. With 79% of BDU revenues between them, Shaw, Rogers and Bell account for the lion’s share of the industry, while Cogeco, Eastlink and Telus, each with 3-7% market share, fill out much of the rest.

Figure 7: Cable, DTH & IPTV English-Language Market Share, 2012

Figure 7

SourcesEnglish-language Media EconomySources and Explanatory Notes.

The Content Media Industries

The big three – Shaw (Corus), Bell and Rogers – not only dominate the BDU side of the television industry, but the content side as well, although here it is becoming clearer over time that some clear blue water is opening up between Bell and Shaw (Corus), on the one side, and the more modest scale of Rogers, on the other, when it comes to TV holdings. I will return to explore this point further below but for now the main point to made is that, collectively, the big three control three-quarters of revenues across the entire TV landscape, i.e. distribution + broadcast TV and pay and specialty TV channels. Figure 8 illustrates the point.

Figure 8: Vertically-Integrated BDUs and Total Television by English-Language Market Share, 2012

Figure 8

SourcesEnglish-language Media EconomySources and Explanatory Notes.

The total English-language television market – excluding the BDU side of things – needs to take account of a crucial fact that has crystallized more clearly in the past few years: the extent to which just two firms – Bell and Shaw – dominate the scene, with Rogers and the CBC falling ever further into their shadow with the passing of time and further consolidation.

Combined, Bell and Shaw controlled 57% of total TV revenues in 2012 before Bell acquired Astral Media, the fifth largest TV company in English language markets. That figure will climb closer to two-thirds once the effects of the Bell-Astral deal become reality in the revenues for 2013 – a point that will be dealt with more fully in next year’s version of this post.

The extent to which Bell and Shaw now stand at the commanding heights of English-language TV markets can be gleaned from a quick reprisal of their holdings. Thus, Shaw’s acquisition of Global TV and a slew of channels from bankrupt Canwest in 2010 gave Shaw/Corus a dozen conventional TV stations that comprise the Global TV network, additional broadcast stations in Oshawa, Peterborough and Kingston (Channel 12, CHEX TV, and CKWS TV, respectively) and fifty-one pay and specialty channels (Shaw and Corus Annual Reports). It’s share of total TV revenues? 27.3%.

Bell’s re-entry into the field after re-acquiring CTV in 2011 created an even larger entity with twenty-eight broadcast tv stations and thirty three specialty and pay tv stations (or forty after the acquisition of Astral). Bell’s 30% share of all TV revenue in 2012 ranked it as the largest TV provider in the country. Its take-over, in a joint-venture with Rogers, of Maple Leaf Sports Entertainment (MLSE) and a roster of sports channels – NBA TV, LeafTV, GolTV, etc. – with the Competition Bureau and CRTC’s blessing last year only compounds the trend.

By comparison, CBC and Rogers are the distant third and fourth tv operators, with 15.6% and 13% share of total tv revenues – roughly half the scale of Bell and Shaw. The CBC had 5 cable TV channels in 2012, while Rogers had a dozen – again, paling in comparison to Bell and Shaw, i.e. 17 in total versus 90+ for Shaw and Bell.

The comparison of these four entities within just the pay and specialty tv domain is especially interesting because, first, this is one of the fastest growing domains of the media economy and, second, because Bell and Shaw’s respective stranglehold is greater here than in either broadcast TV or the TV market as a whole. In 2012, Shaw was the biggest player in the pay and specialty channel domain with 33% market share, while Bell followed close behind with 28%. Together, the two accounted for 61% of all revenues. This looks more like a duopoly then either competition or any kind of reference to the big four that lumps these two goliaths together with Rogers, the CBC or, for that matter, Quebecor.

Bell and Shaw’s respective share of the pay and specialty TV market will reach new heights in 2013 on account of the Bell Astral deal. Shaw will account for 35% of the market, Bell 34%. With just under 70% share of the specialty and pay TV market between them, this is effectively a duopoly. This is why, for instance, Rogers was not signing from the same hymn sheet as Bell at the Bell Astral hearings or the vertical integration hearings in 2011. Bell and Shaw, however, sang koombaya together on both occasions as everybody else receded from view.

In short, the TV marketplace is bifurcating, with Bell and Shaw at the apex, followed far behind by two mid-size players, Rogers and the CBC, and a smattering of small entities scattered after that: APTN, Blue Ant, CHEK TV, Pelmorex, Fairchild, and so forth. In sum, the wave of consolidation blessed by the Competition Bureau and the CRTC stand as testaments to diversity denied. Canadians and the future evolution of the network media ecology in this country will labour under these conditions for years, probably decades, to come.

Before turning to a quick discussion of radio and then newspapers and magazine to complete this post, I want to depict the trends for the content media across time on the basis of both the CR4 and HHI scales. Figures 9 and 10 depict the trends.

Figure 9: CR Scores for Content Media in the English-language Media Economy, 2000-2012

Figure 9

SourcesEnglish-language Media EconomySources and Explanatory Notes.

Figure 10: HHI Scores for Conent Media in the English-language Media Economy, 2000-2012

Figure 10

SourcesEnglish-language Media EconomySources and Explanatory Notes.

As has been the case at each other level of analysis, radio stands out as a clear contrast to trends in TV and in the platform media industries. The CR4 is at the low end of the spectrum, with the “big four” having just under 52% of the market between them: Astral (14.2%), Rogers (14.1%), CBC (12%) and Shaw (Corus) (11.4%).

Again, this will change in light of the Bell Astral deal with Bell catapulting from its fifth place ranking and 9.8% of the market to first place with 22% market share. Still, however, relative to the rest of the media, radio will remain relatively diverse.

This conclusion is illustrated more markedly on the HHI scale, with radio falling well into the un-concentrated zone with an HHI of 822.5. Moreover, the trend over the past half-decade has been steadily downwards – although that too is set to reverse in light of Bell’s take-over of Astral Media.

The last comments for this post are for the newspaper and magazine sectors which I treat together here, in contrast to separately in the Canada-wide analysis and hardly at all in the French-language media markets, mostly because of limits in the available data. Combining the two enlarges the size of the ‘relevant market’ and, consequently, diminishes the scale of specific players within either of these markets, nonetheless the analysis is still instructive.

The analysis shows several things. First, concentration levels are not high and have been falling for most of the past decade regardless of the measure used. Second, to the extent that we can speak of the “big four” press and magazine publishers, they are: Torstar (25%), Postmedia (19%), Quebecor (14%) and the Globe and Mail (8%). To be sure, while concentration levels are not sky high, that four entities account for more than two-thirds of all revenue does not seem worthy of celebration.

At the same time, however, this needs to be set against two other realities: first, both industries have fallen on hard times, newspapers more so than magazines, and as the big players stumble, they are losing market share and, in some cases, being broken up, with significant divestitures leading to the emergence of a stronger second tier of daily newspaper publishers: Transcontinental, Glacier, Black Press, notably.  These entities now need to be put more firmly on the analytical radar screen.

Concluding Thoughts

We can summarize the general results by sorting different sectors of the network media economy that rank low, moderate or high on the concentration scale according to the HHI. Figure 11 below does that.

Figure 11:  Media Concentration Rankings on the Basis of HHI Scores, 2012

Figure 11

Over and above just giving a snapshot of where things stood as of 2012, we also need to distill the key developments over time. Several things stand out.

  • the English-language media economy, like its Canada-wide and French-language counterparts, has grown greatly since 2000, although the course of development has been interrupted by economic instability since 2008. For a some sectors, notably daily newspapers, this may, with the passage of time, be seen as the tipping point in which they went into long-term decline, while for others conditions of prolonged stagnation seem to still be in play, i.e. radio and magazines;
  • the media economy is increasingly internet- and wireless-centric, and mobile, but TV is still a large and significant driver within the network media ecology – carriage, not content, is king.
  • Bell is the largest player in English-language markets with roughly one quarter of all revenues across a wide swathe of media, followed by Rogers, Telus and Shaw.
  • the media in English-speaking regions of Canada are less concentrated than in Quebec, except for mobile wireless services;
  • high levels of concentration persist across most platform media industries: wireless, wireline and falling just beneath the cut-off point, cable, satellite and IPTV services. Internet access is a partial exception when measured regionally or nationally, but not locally;
  • an emerging duopoly is taking shape within the TV landscape, with Bell and Shaw currently accounting for 61% of revenues in the specialty and pay TV universe. This figure is set to rise to just under 70% once Bell’s acquisition of Astral and divestiture of several of that entity’s TV channels to Shaw (Corus) sets in. The CBC and Rogers lag far behind, with a combined market share between them much less than half the share held by Bell and Shaw;
  • as a result of these trends, regulatory battles over access to the three essential resources of the media economy – carriage, content, audience attention – will persist into the future; whether regulators will rise to the occasion any better than they have to date is an open question;
  • Internet access, radio, newspapers and magazines stand out as exceptions to these general trends and as media in which greater diversity and some modest competition prevails.

Next post: How do concentration levels and trends in Canada stack-up by international standards?

%d bloggers like this: