Gatineau rumbles, regulatory lava flows across the Rideau Canal...

Well, the results are in from Gatineau, where the folks at the CRTC have come down with a ruling on the dispute between broadcasters (well, actually CTV) and the cable and satellite companies (the CBC will be considered separately. For more on the details, see here and here. Oh heck, see here and here, too.

I'll probably end up writing something punchier later, but here are some preliminary thoughts to toss into cyberspace:

This is a single point, not a touchdown for Canadian broadcasters: The CFL's funny scoring system is great for analogies such as this one, isn't it? So, yes, the CRTC ruled that they could negotiate with cable and satellite. Yes, this means they could blackout signals or make it difficult for us to watch shows from the US. But there is a big "but" here, as the matter of whether the CRTC has a right to impose such a system is to be left to the courts.

Now we move to a legal discussion here -- about whether this is something that could fly in the courts, about how courts have handled similar issues in previous cases, about what legal concepts would be deployed as part of the legal process, such as copyright. So go to your lawyer-friend for insights as to how this might play out. That's where I'm going to go.

Remember something else: If the courts do not agree that the CRTC has jurisdiction to impose this scheme, it is over. The only way it gets back in play is if the Conservatives amend the Broadcasting Act. Any bets on the likelihood that this is going to happen? Some are saying the Conservatives could overrule the court if it decides that the CRTC has jurisdiction. but I'm not sure about that.

So right now the broadcasters (ahem, CTV) have the CRTC's support to negotiate, which is nice, but that's all they have right now. This is like being told that you have won a prize, only to discover there aren't any prizes left. It's a nice to win, but not if you can't collect the goods.

If you can't beat 'em, group 'em: The CRTC will allow the large mega companies to be licensed together as groups, and will give them the right to spread their Canadian content across their different platforms. Remember, the real problem is media concentration -- but the commission really didn't have much to say about that. In fact, by agreeing to deal with the "mega's" as groups, they all but recognize the validity of concentration. The problem for many is that the CRTC isn't telling broadcasters when to air the Canadian content - to force an "exhibition regime" upon them. But even that is not true, since the evening content requirements remain.

Americanizing the system? There has been discussion that by getting the industry to work it out themselves with a "market-based" solution. In proposing this, the CRTC is mapping an American-style model to the Canadian system. The key words are "based" and "style". Remember "the market" consists of one broadcaster without a distribution outfit (CTV) and three outfits with both (Shaw/Canwest, Quebecor, Rogers). The CBC will be dealt with differently. How will Rogers negotiate with Shaw when both sides are against the regime of negotiating for value in the first place? The CRTC is saying that the industry should work it out for themselves. Given the acrimony between those involved one wonders whether anyone will take them up on that offer.

Goodbye network, hello specialty: With its support for whatever-you-wanna-call-it, the CRTC and the industry have waved goodbye to the network model of television. We are now moving to a specitalty-station model. If approved, we will pay for it At first blush, this makes sense -- this is where the money is in today's television business. At the same time, the decline of the network model is sad to watch, for reasons I won't mention here. Another blog posting for another day, I guess.

On demand, with ads: The CRTC has now allowed providers of on-demand video to be able to insert advertising into their programs, a move that takes away one of the pleasures Canadians enjoyed while watching their television in this way. Such a move is good for distributors and broadcasters, who provide such service to Canadians, allowing them to generate revenue from something they used to offer ad-free.

One of the "C's" in CRTC is for "Content": For me, one of the key lines in the ruling is this one: "the application of regulation must be directed toward the creation of quality Canadian content". Now this isn't really breaking news -- content regulations have been a feature of CRTC regulations since the 1960s. But the emphasis on content underscores the fact that the CRTC doesn't seem to be able to want to do anything about concentration (the other "C", perhaps?). It won't stop concentration from happening, because we still have foreign ownership restrictions which effectively encourage it, whether we like it or not. What it can do is soften the blow, by making those concentrated entities commit, both in content and through contributions to production funding, to the production of Canadian content by the independent production sector. While there are some changes here and there to the amounts and contributions -- changes which affect those working in the industry, to be sure - the essence of that arrangement remains in tact and isn't going anywhere anytime soon.

The (continued) politicization of genre: Speaking of content, no form of television is more politicized in Canada than the drama. The CRTC's decision continues in that vein, by locating it among long-form documentaries and awards shows highlighting Canadian creative talent as a new regulatory category -- "programs of national interest" - that networks will have to contribute towards production. The term is less an artistic category than an industrial one, referring to serial programs employing enough Canadians to qualify as a Canadian production. The language of the report ensures that we will continue to see the (scripted, serial, enough-Canadians-in-the-production) drama continue to serve as the lightning rod for some of the emptiest rhetoric around culture in Canada - rhetoric that "outs" broadcasters for how much they spend on "foreign" programming; that locates a form of programming as the primary means for telling Canadian stories, and so on. For all that is written about Canadian politesse, discussions around the television promote the most uncivil of discourses. Worse that that, it subsumes discussions about other aspects of television (its aesthetic characteristics, its success or failure to connect with audience expectations, its ability to draw on viewer's previous television watching experiences, etc) in favour of this, more simplistic rendering. The fact that such a discussion comes from various interested lobby groups is understandable -- that is what they are supposed to do. The fact that it continues to represent the dominant discourse around television -- even outside of the policy arena -- continues to be highly problematic. The Internet has served as the platform for some groups -- screenwriters, are one example -- to explain how difficult it is to make (write) television shows given the multiple artistic and regulatory demands placed upon it to audiences outside the profession. We could use more of that in the policy debate, too.

Contraband TV
Judging from the reactions on the old Twitter, it seems that people have had their fill of the CRTC, and may have reached the high point of their price sensitivity regarding the cost of television. The emergence of new technological forms - from DVD's and Youtube to digital antennae to BitTorrent -- allow television to be freed from the box. This means people fed up with the regulatory shenanigans will look elsewhere for their tv. The Chairman acknowledged this yesterday, but did so in the context of negotiations between cable and broadcasters (ahem, CTV). If you don't settle, and start to play games by blocking access to people's tv shows, they will turn elsewhere. That's true, but the CRTC may have something to do with it, too. People have long been frustrated with the way these policies impinge on their television -- now they have the means to go around it altogether.

Conservatives Still Need a Say: It's been very quiet over at the offices of Heritage MP James Moore. A Twitter feed says only that the government values consumers and will look forward to reading the CRTC's report on value for signal tomorrow. Remember: the Conservative government has gone around the CRTC on a few occasions, first with Globalive, then with pushing the CRTC back into the fee-for-carriage discussion after the networks launched their aggressive pr campaign. They have been firm on many issues --including issues that look like taxes or levies, for fear it will stick to them in this, the age of perpetual campaigning. In other words, the issue is not over until either a) the Conservatives get a majority or b) we start again under another government or c) the current government finds a way to blame someone else for higher cable bills like, say, the courts. Stay tuned to see how the folks in charge react over the coming days.

Now what?
One should keep in mind that this is a process and a framework for discussion -- important, to be sure, but not the end of the story. It was good for Konrad von Finckenstein, the commission chair, to talk to the press, to get his point across. Previous commission chairs might not have been so eager to do so on a hot potato topic such as this one. Remember too that the CRTC has it's own rules to follow, rules of process, rules associated with jurisdiction and so on. They cannot just come out and say whatever they want; they are limited by their position within the government of Canada. It is hard to keep this in mind, yet people always seem to want the organization to do things that are either a) outside of its mandate b) impossible to achieve. We all have opinions on the CRTC -- many of them are well-founded -- but few of us are aware of how the commission works and, more importantly, what are the internal dynamics of the commission and its corporate culture. I wish someone -- a future PhD student, perhaps? -- could be able to do a participant observation study of the CRTC -- handled properly, it would make for fascinating reading.

The CRTC needed something on which to base its discussions which those under its regulatory wing when license renewals come up in 2011. They can make changes to frameworks as quickly as they introduce them. In fact, many of these details won't be worked out until the renewal process takes place in 2011 Short-term thinking on the results of one decision -- and of one long and difficult document -- can cause people to say things they probably don't mean. Restrict your temptation to fire barbs at the CRTC and proceed with caution through this one. This is a marathon, not a sprint, and tomorrow is another day.

In this case, tomorrow (well, now it's today) is another report - this time by the CRTC to Heritage about this whole mess. So relax, and stay tuned.