Bill C-10 (Historical)

An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts

This enactment amends the Broadcasting Act to, among other things,
(a) add online undertakings — undertakings for the transmission or retransmission of programs over the Internet — as a distinct class of broadcasting undertakings;
(b) update the broadcasting policy for Canada set out in section 3 of that Act by, among other things, providing that the Canadian broadcasting system should serve the needs and interests of all Canadians — including Canadians from racialized communities and Canadians of diverse ethnocultural backgrounds — and should provide opportunities for Indigenous persons, programming that reflects Indigenous cultures and that is in Indigenous languages, and programming that is accessible without barriers to persons with disabilities;
(c) specify that the Canadian Radio-television and Telecommunications Commission (the “Commission”) must regulate and supervise the Canadian broadcasting system in a manner that
(i) takes into account the different characteristics of Indigenous language broadcasting and the different conditions under which broadcasting undertakings that provide Indigenous language programming operate,
(ii) is fair and equitable as between broadcasting undertakings providing similar services,
(iii) facilitates the provision of programs that are accessible without barriers to persons with disabilities, and
(iv) takes into account the variety of broadcasting undertakings to which that Act applies and avoids imposing obligations on a class of broadcasting undertakings if doing so will not contribute in a material manner to the implementation of the broadcasting policy;
(d) amend the procedure relating to the issuance by the Governor in Council of policy directions to the Commission;
(e) replace the Commission’s power to impose conditions on a licence with a power to make orders imposing conditions on the carrying on of broadcasting undertakings;
(f) provide the Commission with the power to require that persons carrying on broadcasting undertakings make expenditures to support the Canadian broadcasting system;
(g) authorize the Commission to provide information to the Minister responsible for that Act, the Chief Statistician of Canada and the Commissioner of Competition, and set out in that Act a process by which a person who submits certain types of information to the Commission may designate the information as confidential;
(h) amend the procedure by which the Governor in Council may, under section 28 of that Act, set aside a decision of the Commission to issue, amend or renew a licence or refer such a decision back to the Commission for reconsideration and hearing;
(i) specify that a person shall not carry on a broadcasting undertaking, other than an online undertaking, unless they do so in accordance with a licence or they are exempt from the requirement to hold a licence;
(j) harmonize the punishments for offences under Part II of that Act and clarify that a due diligence defence applies to the existing offences set out in that Act; and
(k) allow for the imposition of administrative monetary penalties for violations of certain provisions of that Act or of the Accessible Canada Act.
The enactment also makes related and consequential amendments to other Acts.

[The Chair, Liberal, Scott Simms]

Ladies and gentlemen, I think that brings us to a conclusion.

We will see you at the next meeting, of course, on April 30, this coming Friday, at the same time.

As I mentioned before, we were unable to get extra hours for Friday, so we will be meeting in our normal two-hour block. Following that, on May 3, we have two meetings scheduled on Bill C-10. If we finish with Bill C-10, we can discuss at that point. We'll see how we're doing on April 30. I think April 30 will give us a far better indication of how we're going to do for May 3.

In any case, I will say thank you to our officials from the department.

Thank you to everybody participating virtually here and abroad.

Thanks, everyone.

The meeting is adjourned.

[Martin Champoux, Bloc, Drummond, QC]

I'd just like to draw a parallel.

We are in the process of reforming the Broadcasting Act because of an imbalance in the market. At the moment, major Canadian broadcasting undertakings are being treated unfairly. That's why we are reforming the act by means of bill C-10. However, there are some much smaller players in that same market. They are even more deeply affected than the major undertakings, and will be affected even more unless we take immediate action to support them, now and for years to come.

It's not at all a bad amendment. It deserves support.

[Thomas Owen Ripley]

Thank you for the question, Mr. Shields.

To clarify, what is on the table through this amendment is an extension, with some changes, of what we call mandatory distribution in the conventional system.

Right now the CRTC has the ability to require cable and satellite companies to carry certain TV channels, such as APTN, CPAC or your provincial legislative channel. The CRTC has the ability to impose terms and conditions on that, requiring Canadian cable and satellite companies to, in some instances, not only carry APTN but also actually pay a per subscriber fee to APTN, for example.

The committee heard from certain witnesses who felt that it was very important, as Bill C-10 moves forward, that the CRTC have a lever, as it has in the current system, to require online undertakings to carry certain channels.

The amendment that you have before you would allow the CRTC—and yes, it would be the CRTC that would make this kind of order—but it could allow, for example, such services as the Amazon channels or Apple or something like that, to carry APTN, for example, as part of their lineup. The difference—and this is where the debate has been focusing—is whether the CRTC should have the ability to require terms and conditions for that contractual arrangement.

The amendment before you proposes that the CRTC not be granted that power, but rather that the parties be required to negotiate in good faith and that the CRTC be equipped to facilitate those negotiations when appropriate, and if ever you had a party not negotiate in good faith, the CRTC would have the ability to levy administrative monetary penalties against the party acting in bad faith.

The reason for this is that the context and the marketplace are quite different between the conventional system and the new system. In the online world, there is less of an issue of shelf space. In many circumstances right now, in the commercial arrangement between services like Amazon channels or Apple, they'll come to a revenue-sharing agreement.

The goal here is to require those services to potentially carry certain Canadian services and require them to negotiate in good faith to come to a reasonable revenue-sharing agreement, which typically these days looks like being approximately fifty-fifty, in most cases.

I hope that helps to clarify.

[Thomas Owen Ripley]

Thank you for the question, Mr. Chair.

The answer would be no, amendment BQ-18 as drafted only covers French programming. It adds a new order-making power for the CRTC.

I would point the committee to new subsection 9.1(1), paragraph (a) of the Broadcasting Act, which already in Bill C-10 has provided the commission with the ability to make orders with respect to

the proportion of programs to be broadcast that shall be Canadian programs and the proportion of time that shall be devoted to the broadcasting of Canadian programs;

Then it continues in paragraph (b) with “the presentation of programs for selection by the public”, etc.

Bill C-10 had already provided the CRTC with the ability to make orders with respect to Canadian programs, which would include English, French, third language and indigenous language programs. In some respects, amendment BQ-18, which includes a new proposed paragraph (a.1), is putting a special emphasis on the importance of the CRTC having special order-making power with respect to French language.

You are absolutely correct that amendment PV-20 is broader, in that it speaks to both official languages. My question with that would be for Mr. Manly, in the sense of the intention or spirit of the amendment. Was it specifically a concern rooted in French language? If so, amendment BQ-18 may already have covered you off. Is the intention to be broader?

[The Chair, Liberal, Scott Simms]

I was going to ask this question before, but with the health break, it's fine. This is a first for this particular session on Bill C-10, but I would like to ask the department a question, if I may.

Just so we're all clear, there has been some discussion about amendments BQ-18 and PV-20 and the remarkable similarities between them.

I think, Mr. Ripley, you may be prepared for this.

In amendment BQ-18, it seems to me at first blush that what we are looking at is a distinct way of describing the presence of French language as one of the official languages. Amendment PV-20 covers both languages.

In amendment BQ-18, is it the case that, when adopted, the English aspect would be covered as well—meaning that you've only identified that part, but does it follow logic that the rest would be covered under this particular bill, in the department's interpretation?

Mr. Ripley.

[Lyne Bessette, Liberal, Brome—Missisquoi, QC]

Thank you, Mr. Chair.

I think Mr. Champoux's amendment is a valid one. We feel it's wise to include this measure in Bill C-10 rather than in the order. So we'll be supporting this amendment.

[Thomas Owen Ripley]

My view is that the spirit of them is the same. As the committee is aware, in the conventional world, licences had to be renewed at a maximum of seven years.

Bill C-10 as tabled did not have a cap on the length of orders and conditions of service, and I am aware that the committee heard from stakeholders who expressed concern about that.

As Mr. Olsen highlighted, the government recognizes that there are certain very important elements that will be done through orders. If you look at the kinds of things that are listed in proposed section 9.1, we talk about presentation of Canadian programming and certain things along those lines, and it will be important that those things have an opportunity to be reviewed on a periodic basis and that stakeholders have an ability to provide input on that.

If you also look, there are more administrative things. I would point out to you, for example, the carriage of emergency messages. The spirit of the government's amendment that Ms. Dabrusin alluded to gives the CRTC some flexibility to, again, tease out the issues that stakeholders want to engage on and let those orders that are more administrative in nature not be subject to a process whereby it will be more burdensome for both the CRTC but also the stakeholder community that would be expected to engage on those processes. The spirit was to tease out those things where there is strong interest in them being reviewed but acknowledge that there are going to be orders that are more administrative in nature.

The amendment before the committee right now would subject all orders to having to be renewed every seven years, regardless of their administrative nature or not.

[Thomas Owen Ripley]

Thank you for the question, Mr. Housefather.

As far as I'm aware, when we look at comparator countries, liberal democracies, the answer to that would be no. Those countries that are, like Canada, moving forward with broadcasting regulation that seeks to include streaming activities within its scope.... When you look at the EU, for example, there is a recognition in those jurisdictions as well that the business model between a conventional broadcaster that traditionally has to hold a licence and the business model of streaming services is different.

Bill C-10 seeks to ensure a level playing field, a more fair system and have these players contribute, but Bill C-10 was very intentional about not extending a licensing model to Internet-based companies.

[Thomas Owen Ripley, Director General, Broadcasting, Copyright and Creative Marketplace, Department of Canadian Heritage]

Thank you, Mr. Chair, and good morning everybody.

If I understand the amendment correctly, perhaps I'd comment on two elements of it.

The first element relates to reintroducing the idea that there could be conditions of licence that take the form of contributing to the policy objectives of the act. This is similar to a Green Party amendment that we spoke about on Friday.

To perhaps recap, Bill C-10 seeks to move away from a regime whereby the expenditure contributions that broadcasting entities are required to make are contained within their licence, which is their actual authorization to operate.

Instead, as I think the committee is aware, Bill C-10 creates new order-making powers for the CRTC in clause 9.1, and new regulation-making powers. Those order-making and regulation-making powers are meant to substitute for the old conditions of licence.

If you look at the wording of clause 9.1, for example—the order-making powers—you will see that they are able to apply to a category or a class of undertaking, but they're also able to apply to an individual undertaking if the need requires. Just as in the old world when you had a condition of licence and maybe you needed a unique condition of licence specific to one company, the CRTC still has that power at clause 9.1.

The concern would be that if the committee reintroduces the idea of conditions of service, it muddies the waters about the type of instrument that should be used to impose conditions on companies. Moving forward, not only would a company potentially be subject to regulation and relevant orders, but it could also be subject to additional requirements specific to their conditions of licence.

We heard from Mr. Manly on Friday that one of his concerns related to the idea of enforcement. How do you know that companies are actually meeting the requirements of their licence? This generally waits until the renewal of the licence. Bill C-10 outlines a different vision whereby, as we outlined, companies would be subject to an administrative monetary penalty where they're not in compliance. The idea behind that is the CRTC takes a much more active, regular enforcement stand vis-à-vis broadcasters.

The idea behind Bill C-10 is that broadcasters shouldn't have to wait until the renewal of their licence to be able to go to the CRTC and say that a company is not compliant. Rather, Bill C-10 outlines a perspective that you should be able to go to the commission and say that a broadcaster is not meeting their requirements and the CRTC would be able to do an investigation on that right away.

The second piece relates to the registration requirements. Perhaps I would just indicate on this one that Bill C-10 took the stance that registration is not intended to be permission to operate in Canada.

Once again, Bill C-10 starts to regulate various online undertakings—various Internet-based companies—and the government was very clear that it didn't want to set the CRTC up as a gatekeeper before a company could launch its business online. The CRTC would have the ability to say yes or no. That stance goes against the idea of an open and free Internet. On the registration regime contemplated by Bill C-10, I would remind the committee that at paragraph 10(1)(i), the CRTC can make regulations respecting the registration of broadcasting undertakings in Canada. That was intended to essentially facilitate them knowing the contact information and the way to get in touch with these companies. It was not intended to be substituted for a permission to operate in Canada.

My understanding, based on what Mr. Champoux outlined, is that, if the idea is to suspend or revoke a registration or something like that, it seems to be setting the CRTC up much more for a gatekeeper role with a permission to operate. That would have implications for a free and open Internet and the ability for online undertakings to offer their services without first having to go and seek permission from the CRTC.

[The Chair, Liberal, Scott Simms]

Folks, welcome back. We are still on clause-by-clause consideration of Bill C-10.

Most of you now must know the rules, of course. For those of you who are listening outside and for whom this is your first time joining us, welcome. This is Canadian democracy at its best. We go clause by clause through the bill. We've had some amendments thus far, and we're continuing.

I'll get to that in just a moment, but just as a reminder to everybody about the way we do this, if you hear us talking about letters and numbers, those are for the particular amendments put forward by each group with us at the committee. In other words, if you hear us say, “PV-1”, that would be a Parti Vert—Green Party—amendment. We have CPC ones, which would be from the Conservative members on the committee; LIB would be from the Liberal members, BQ from the Bloc Québécois, and NDP amendments come from the New Democrats. Finally, G amendments, as in G-1 or G-2, would be amendments from the government.

Are there any questions before we start? Are there any issues? I'm going to start this one fairly quickly, since I think we know most of the machinations that happen.

I'll get to our guests from the department later, but I will say thank you again for joining us.

I want to say all the best to everyone. I hope you have a safe week, no matter where you are.

Let's get back to the business at hand. We will go back to clause-by-clause study.

(On clause 6)

We are currently at—and this is a newer version of what we had before—amendment BQ-15(N), so we go to the new page and BQ-15(N).

I am going to Mr. Champoux.

[Thomas Owen Ripley]

Thank you for that question, Mr. Champoux.

We've made two comments on that point.

First, if an undertaking fails to meet its obligation to contribute to the system, the CRTC currently has authority to revoke its licence. However, we know perfectly well that, in the current circumstances, the mere possibility of revoking a licence isn't a very balanced way of taking action against undertakings that fail to comply with the act. That's why Bill C-10 would grant the CRTC authority to assess administrative monetary penalties. The CRTC could therefore impose such penalties if an undertaking failed to discharge its obligations.

As regards the registration system, Bill C-10 would grant the CRTC regulatory authority to ensure that undertakings register with it. That's provided for under proposed paragraph 10(1)(i), if I'm not mistaken. It's provided that the CRTC would have that power for the reasons you mentioned.

[Thomas Owen Ripley]

Thank you, Mr. Chair.

What Bill C-10 seeks to do is a shift. As the committee is aware, right now the majority of services are subject to licences where there are conditions baked into those licences. As part of permission to operate a TVA channel or a CTV channel, those services are required to contribute to the cultural policy objectives of the act.

What Bill C-10 does is it moves away from those cultural policy contributions being part of the actual licence fee, the technical permission to operate and use a spectrum or to operate your cable or satellite service. What it does is it equips the CRTC to issue orders and regulations that will prescribe those contributions.

The intention there is so that online undertakings and conventional services are being treated in the same way, in the sense that they're subject to the same kind of instrument in terms of the things that outline those obligations.

What that means in practice is that the licence moving forward would simply be nothing more than the authorization to run that service over a particular band of spectrum or whatnot. It's for that reason that Bill C-10 proposes moving away from the seven-year term. The seven-year term used to be important because it was an opportunity for the CRTC to revisit the contributions that a service might have to make supporting Canadian program or French-language programming or showcasing Canadian content, but that's no longer the case. The government's view is that it doesn't make sense to force the CRTC to revisit a licence every seven years because it's not going to be in question whether CTV Toronto can continue to operate and use that band of spectrum. If ever there does need to be changes in terms of spectrum allocation and the authorization to operate, the CRTC has the ability to revoke a licence or look at a licence or amend a licence if it needs to.

I hope that helps clarify.

[Thomas Owen Ripley]

Thank you, Mr. Chair.

I believe there may be a bit of a disconnect then in terms of Ms. Ien's statements and G-7.

G-7 is intended to clarify that policy direction that can be issued by the Governor in Council to the CRTC. It would include giving direction of general application with respect to orders issued under 9.1 or regulations issued under 11.1.

There seems to be some confusion among stakeholders following the tabling of Bill C-10, whether it would be appropriate for the government to give an indication about the way that those powers should be used. G-7, Mr. Chair, is intended to clarify the scope, as long as it still remains at a level of general application. We're not talking about interfering in specific decisions. Rather, the expectation is that the CRTC would ensure certain kinds of discoverability or certain kinds of contributions from certain types of players, and that would be appropriate.

I apologize if I've missed something, Mr. Chair, but that is my understanding of what's intended by G-7.

[The Chair, Liberal, Scott Simms]

Once again, we're doing clause-by-clause on Bill C-10. I won't get into the details about all this. If you've been following along, you know how this works. We're going to go right to new clause 4.1.

The first one up is G-7, put forward by Ms. Dabrusin.

Ms. Dabrusin, are you with us?

[Thomas Owen Ripley]

Thank you, Mr. Chair.

Thank you for your question, Mrs. Bessette.

As the committee knows, Bill C-10 would add this paragraph to the act by creating a new class of broadcasting undertakings: online undertakings. Many undertakings are thus concerned here. Since the definition of online undertaking includes undertakings that provide audio and audiovisual services, if the provision is adopted, it will therefore embrace a large number of businesses.

In recognizing that Bill C-10 is enlarging the responsibilities, enlarging the scope of the act and the responsibilities of the CRTC, this provision of the bill was included to signal that the default stance of the CRTC should not be to regulate every little online undertaking that's in the business of offering audio or audiovisual services to Canadians, but rather that the goal here is to capture those services that are in a position to make a material contribution to the policy objectives of the act.

In the current conventional world there's a finite number of services that are offered either over the air or on cable or satellite, so there was a very closed environment. We're very mindful that in Bill C-10 what we're doing is enlarging the CRTC's responsibility to include Internet undertakings and the government's view on that is that there should be a judgment call made about when those services are subject to the regulatory requirements that come with Bill C-10. That's why this provision is included then in Bill C-10.