Broadcasters File Complaint against CBC for Music Website

The Globe and Mail reported on Thursday  that a coalition of private broadcasters will file a complaint with the CRTC against the CBC because of the music services it is now providing at http://music.cbc.ca/

Billboard has confirmed  that a group of private broadcasters has filed a complaint with the CRTC and with Heritage Minister claiming that the CBC is exceeding its mandate in providing the free service.

While an official copy of the complaint is not yet available, [what appears to be part of the letter has been posted here]  news accounts indicate that the gist of the complaint is based on a narrow reading of the CBC’s mandate.  According to a report in Thursday’s Vancouver Sun,

“the companies, which include Quebecor Inc., Cogeco Cable Inc. and Stingray Digital Media Group, say it’s not part of the government-owned broadcaster’s mandate to compete with fee-based music streaming websites or commercial radio stations by providing this service for free at music.cbc.ca. They also take issue with what they say is a lack of focus on Canadian content in providing this service.”

An editorial in the Friday Ottawa Sun issues a strong rebuke to Minister Moore, accusing him of being a CBC cheerleader, and a recent SUN TV segment features Ezra Levant making the claim that the music service goes beyond the CBC’s mandate under the Broadcasting Act.

Before the developments in this case unfold any further, it is a good time to just back up and take a close look at the CBC’s mandate, which is set out in the Broadcasting Act. Section 3(1)(l) of the Act: provides:

3. (1) It is hereby declared as the broadcasting policy for Canada that:

* * *

(l) the Canadian Broadcasting Corporation, as the national public broadcaster, should provide radio and television services incorporating a wide range of programming that informs, enlightens and entertains;

So an important threshold definitional issue is what is meant by the term radio and television services. While this exact term is not expressly defined in the definitions section of the Act, it seems clear that taken as a whole, the Act would anticipate the provision of internet resources as coming within the broad scope of the mandate. In other words, it seems overly restrictive, and indeed a bit late in the day to complain about the use of the Internet to complement, enhance or supplement traditional broadcasting services. Such support can be found within the definitional section of the Act itself (section 2) as well as in the statements of policy contained in section 3.

Section 2(3) provides an aid in interpretation for the enumerated definitions, stating that:

This Act shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings.

In visiting the websites of various private broadcasters as well as the CBC, one readily appreciates the extent to which the Internet has been utilized used to enhance, complement and supplement traditional radio and television broadcasting in ways that were hardly imaginable when the Act was passed in 1991.  Additional support for a broad interpretation of the CBC’s mandate beyond the section 2 definitions is found in section 3, which enumerates the policies underlying the Act.

Section 3(d)(iv) which applies to all aspects of the Canadian system (which includes the CBC and private broadcast undertakings) provides that the system should “be readily adaptable to scientific and technological change.” Section 3(k), also of system wide applicability, provides that “a range of broadcasting services in English and in French shall be extended to all Canadians as resources become available.”

With respect to the CBC itself, subsections 3(l) and (m) set forth an exceptionally broad mandate for the corporation. In addition to the general mandate in 3(l) that the corporation “should provide radio and television services incorporating a wide range of programming that informs, enlightens and entertains,’ Section 3(m) contains additional mandates directly about the programming, including that it “(vii) be made available throughout Canada by the most appropriate and efficient means and as resources become available for the purpose”.

The intention of Parliament in drafting these sections at a time when significant technological changes were on the horizon was clearly in favour of technological neutrality.

And if there were any questions about a supposed conflict remaining, section 3(n) makes it clear that they should be resolved in favour of a broad interpretation of CBC’s mandate:

Section 3(n):  where any conflict arises between the objectives of the Corporation set out in paragraphs (l) and (m) and the interests of any other broadcasting undertaking of the Canadian broadcasting system, it shall be resolved in the public interest, and where the public interest would be equally served by resolving the conflict in favour of either, it shall be resolved in favour of the objectives set out in paragraphs (l) and (m).

It quite disingenuous for the very same private broadcasters who make broad use of the Internet to complain about the CBC doing the same.  So at the outset, any attempt for the complainants to try to characterize the CBC’s use of internet resources as somehow ultra vires its statutory mandate borders on the absurd.

More analysis will follow. . .

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