Broadcasting and the Public Interest

In an exercise that can only be described as political theatre of outrageous and ridiculous proportions, members of both the governing Liberals and the opposition Conservatives have spread misinformation and outright lies about Bill C-11 (the Online Streaming Act). The Minister of Canadian Heritage has made blatantly false statements in both the House of Commons and at the Standing Committee on Canadian Heritage about the contents of the bill he is sponsoring, while former Conservative Party leader Andrew Shearer has absurdly painted the CRTC as a censorship tool of the nanny-state, rather than the telecommunications market regulator that it is. To be clear, while I believe that online streaming platforms need to be brought into a regulatory system that is compatible with the ‘single system’ described in the Broadcasting Act, I believe the mechanisms conceived in Bill C-11 largely miss the mark.

Political rhetoric and all intentions aside, Bill C-11 introduces a number of legitimate and serious democratic problems:

  1. Credibility of the entire Canadian broadcasting system depends on the CRTC being an independent and accountable regulator. In paragraph 5(2)(h), C-11 introduces intentional ambiguity into the CRTC’s mandate by leaving it up to the CRTC to decide what is material or not. Not only does this violate the most basic principles of accountability, it is also specifically discouraged by the OECD’s published guidance on the Governance of Regulators. Furthermore, it is the exact opposite of BTLR recommendation #59, which recommends “the Broadcasting Act be amended to provide further policy guidance to the CRTC.”
  2. Throughout the history of recorded music, from the emergence of jazz, rock and roll and hip-hop, independent record labels have been at the forefront of new — frequently controversial and subversive — ideas, finding commercial audiences for marginalized and unpopular voices that are often expressed in the form of new genres. Paragraph 9.1(1)(d) gives the CRTC the explicit authority to regulate genres of programming in the name of “diversity.” For “greater certainty,” Section 7(7) makes section 9.1(1) subject to any orders from the Governor in Council, effectively granting to Cabinet the power to dictate which genres may be broadcast. Although this is arguably a well-intentioned provision, it is quite literally the same type of policy that Nazi Germany employed to ban “degenerate” music from the radio (notably jazz and swing genres, which the regime perceived as ideologically dangerous), and it has no place in a liberal democracy.
  3. The automobile industry is rapidly moving towards “V2X,” also known as “vehicle-to-everything,” a standard for Internet-connected cars facilitated by 5G mobile networks. In addition to providing new safety features, V2X promises to become the technical foundation of future in-car entertainment, offering multichannel audio and immersive experiences for passengers. Paragraph 9.1(1)(f) specifically exempts agreements between online platforms and telecommunications common carriers from CRTC oversight, while simultaneously imposing this requirement on any contracts negotiated between traditional broadcast licence holders and telecom carriers. This means, for example, that while Bell Media’s radio stations would need to get approval before cutting a deal for 5G service with Bell Mobility, US-based radio stations distributed via the iHeartRadio app would not. This opens the door to the largest and richest streaming platforms negotiating preferential treatment with mobile network operators for control of the in-car audio market.
  4. Most fundamentally, C-11 defines “broadcasting” as “any transmission of programs” by any means of telecommunications. The Broadcasting Act defines “programs” as any audio or audiovisual content that is not predominantly alphanumeric text. In other words, all music and video on the Internet will be deemed by the Act to be “broadcasting.” Just as record stores, video rental stores and libraries are not “broadcasters,” most people know instinctively that not everything on the Internet is the same thing as broadcasting. Yet the drafters of C-11 have made no attempt to rethink this fundamental aspect of the bill.

While the first three of these problems can be addressed with relatively straight-forward amendments to the bill, a better definition of “broadcasting” requires an examination of the public interest and why broadcasting is a regulated activity in the first place.

In 1927, the United States enacted the Radio Act to manage the limited amount of broadcast radio spectrum in any given market. This Act requires licensed broadcasters to act in the “public interest, convenience and necessity,” which the Federal Communications Commission (FCC) interprets to generally mean that broadcasters “must air programming that is responsive to the needs and problems of its local community” (FCC, 2019). While broadcasters have a constitutional right to freedom of expression, this public interest responsibility entrusts the FCC with a role in regulating the broadcast of obscene, indecent and profane material, hoaxes and news distortions.

When community area television technology (CATV, also known as cable television) emerged in the 1950s, its proponents argued that it was fundamentally different from over-the-air broadcasting, since cable systems do not make use of radio spectrum, do not suffer from spectrum scarcity, and thus should not be subject to the same public interest standards as broadcast services. In the United States, this view of cable television was accepted until 1960, when the FCC began to assert limited jurisdiction over cable to address concerns about it ‘siphoning’ audiences and advertising revenues away from conventional broadcasters (Becker, 1978). This market-related rationale for the regulation of cable television was upheld by the U.S. Supreme Court in United States v. Southwestern Cable Co., 392 U.S. 157 (1968).

These same audience-siphoning concerns played out in Canada, where the Broadcasting Act of 1968 imposed the doctrine of a ‘single system’ for broadcasting. Entrusted with supervising and regulating this single system, the CRTC was concerned not only with cable operators siphoning audiences away from over-the-air broadcasters, but with the commercial implications of distant signals imported from the United States. At the time, major consumer brands that were sold on both sides of the border accounted for about 60 percent of television advertising in Canada (Babe, 1974), and the CRTC was worried that Canadian broadcast revenues would dramatically decline if American television attained a significant share of the Canadian viewing audience.

Fifty years later, the Government of Canada is seeking to integrate ‘Internet giants’ into the ‘single system’ for essentially the same economic and cultural reasons as cable. As was the case in the cable television debates, concerns about bandwidth, freedom of expression and the public interest have dominated the conversation.

Although radio spectrum and channel scarcity are not relevant to Internet distribution, digital transformation has created new limiting factors that affect the public interest. Contemplating this in his 2004 essay Digital Speech and Democratic Culture, American legal scholar Jack Balkin postulates “the digital revolution [has] made a different kind of scarcity salient. It is not the scarcity of bandwidth but the scarcity of audiences, and, in particular, scarcity of audience attention” (Balkin, 2004). Tim Wu, who is widely credited with coining the term ‘network neutrality’ further examines the importance of audience attention, suggesting in his 2017 analysis of first amendment jurisprudence that it is now the most important limited resource in mass communications:

Unlike in the 1920s, information is abundant and speaking is easy, while listener time and attention have become highly valued commodities. It follows that one important means of controlling speech is targeting the bottleneck of listener attention, instead of speech itself (Wu, 2017).

In these analyses, Balkin and Wu identify the importance of the audience, and how content is experienced at the point of consumption. From this perspective, the defining characteristic of ‘broadcasting’ has nothing to do with the nature of content or the technicalities of its transmission, but rather how these transmitted messages are experienced. Like traditional broadcasters, the Internet platform companies achieve their business objectives by making editorial choices designed to maximize the amount of time audiences spend in their media channel. These editorial choices break down the one-to-one relationship of on-demand digital communication by increasing the reach of certain content selections to far wider audiences than they would have otherwise achieved. Regardless of whether these editorial choices are made by humans exercising skill and judgment, or by machine-learning algorithms, they are first and foremost business decisions designed to increase profits for media channel owners. From the perspective of audience experience, it is this point of editorial programming control that is the single defining characteristic of ‘broadcasting.’

Clearly, there is a wide range of activity involving audio and audiovisual content on the Internet, and not all of it can be classified as ‘broadcasting.’ A regulatory framework for online streaming needs to acknowledge these distinctions if it is to legitimately serve the public interest. As Dwayne Winseck summarizes, C-11 “is all about content and says nothing at all, really, about the concentration in digital markets and the surveillance capitalism model that have, in essence, wrecked the internet.” To follow this thread, most people would likely agree that the incessant propagation of pop-up advertisements, sponsored content and the endless feeds and alerts of algorithmically selected ‘recommended’ or ‘suggested’ content are what has ruined the internet. To serve the public interest, I humbly suggest that “broadcasting” should mean editorially selected content designed to maximize audience engagement. It should not include content that is actively chosen by members of the public for their own consumption using their own search criteria.

Following this logic, broadcasting can thus be defined as editorial control of a telecommunications channel designed to capture human attention for the reception of programs. In other words:

“broadcasting” means the transmission, by radio waves or other means of telecommunication, of programs that are editorially pre-selected, whether by human judgement or automated means, for public reception by means of a broadcasting receiving apparatus.

This definition of broadcasting would continue to capture existing broadcasters, while also delineating between editorially-driven and pure on-demand streaming platforms. In the debate about whether social media content should be regulated, it would also limit the bill’s scope to include only the algorithmically-driven content that bypasses users’ individual content choices.

References

Babe, R. E. (1974). Public and private regulation of cable television: a case study of technological change and relative power. Canadian Public Administration, 17(2), 187–225.

Balkin, Jack M. (2004). Digital Speech and Democratic Culture: a Theory of Freedom of Expression for the Information Society. New York University Law Review, Vol. 79, №1, Yale Law School, Public Law Working Paper №63.
Available at SSRN: https://ssrn.com/abstract=470842 or http://dx.doi.org/10.2139/ssrn.470842

Becker, J. A. (1978). Unleashing Cable TV, Leashing the FCC: Constitutional Limitations on Government Regulation of Pay Television. Fordham Urban Law Journal, 6(3), 646.
Available at: https://ir.lawnet.fordham.edu/ulj/vol6/iss3/10/

FCC, Federal Communications Commission. (2019). The Public and Broadcasting: How to get the most service from your local station. Available at: https://www.fcc.gov/sites/default/files/public-and-broadcasting.pdf

Winseck, D. (2022). Still not dead: Why we need to kill Bill C-11, the Online Streaming Act, and start over. Mediamorphis. Available at: https://dwmw.wordpress.com/2022/02/03/still-not-dead-why-we-need-to-kill-bill-c-11-the-online-streaming-act-and-start-over/

Wu, T. (2017). The Attention Merchants: The epic scramble to get inside our heads. Vintage.

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