ISPs should be forced to pay for new broadcast programming
Are ISPs broadcasters? Supreme Court of Canada says no
Media professor Terry Field argues ISPs should be treated as broadcasters and forced to pay for Canadian cultural programming.
Troy Media – by Terry Field
Not that we needed more proof, but a recent decision by the Supreme Court of Canada has provided it anyway. The digital media universe is immune to control.
Or so it would seem, with the most recent evidence being a Supreme Court ruling (February 2012) in which the court rejected the notion that Canada’s Internet Service Providers (ISPs) have now also become broadcasters.
To be fair to the process, the Justices needed to consider existing law, largely the federal Broadcast Act, which has not been substantially amended since 1991. The act predates the staggering growth of digital technology and media, and in that context it defines broadcasters in traditional terms based on owning and operating bricks and mortar studios. To that end the court determined that ISPs don’t meet the test of being a broadcaster because they don’t directly produce programs, but simply transmit content to end-users or their clients.
When is a broadcaster not a broadcaster?
Roger’s Communications is one of the country’s big media players with deep pockets and a range of holdings including the Toronto Blue Jays baseball team. The team’s games are available on the Roger’s-owned Sports Net, a sports broadcasting network, and on your cell phone.
But presumably because the CEO of Roger’s is not in the stadium running the camera that captures the action, the company is not considered a broadcaster, even though it owns the team and the broadcast pathways for the games. Other ISPs such as Bell, Shaw and Videotron, are all massive companies with a range of broadcast holdings, but neither are they considered broadcasters.
The Supreme Court decision upheld a Federal Court of Appeal ruling sought by the CRTC, the country’s broadcast and telecommunications regulator. Following hearings in 2010, the CRTC determined that it couldn’t decide whether ISPs were broadcasters or not, or that if they did render a decision it would have resulted in a court challenge anyway.
Had the court decided the ISPs were broadcasters they would be subject to CRTC regulatory scrutiny and compelled to meet program production demands that they currently can avoid. In short, it would have cost them money to keep presenting programs, with that money being used to create more original programming content.
It’s not that the ISPs don’t participate at all. Their cable company subsidiaries already contribute to a fund for new programming, but exempting the phone business from the same requirement even as it becomes a broadcasting juggernaut effectively ropes off much of their profit from CRTC involvement.
ISPs the main game in town
As has been reported previously by Troy Media, as a small country in population terms Canada has a choice to make. It can allow itself to become a dumping ground for cheap programming from the United States in whatever manner it is delivered, or it can continue regulating broadcasting so that we can fund original Canadian programming that reflects the country’s history and culture.
Maintaining Canadian-based broadcasting, filmmaking etc., will demand money, and the ISPs are now the main game in town. Without their involvement it will become increasingly more difficult to keep the country’s long history of indigenous production alive.
At the end of the day all this boils down to a value judgment, and the real issue here is not with the courts but with the Government of Canada, which has shown no interest in adjusting the Broadcasting Act to account for the digital media era. On the purely financial front doing nothing is arguably better for business. ISPs forced to pay for new broadcast programming would need to raise that money through subscribers by increasing charges for bandwidth use, among other possibilities.
On the cultural front we have more to lose than dollars.
Terry Field is an associate professor in journalism and chair of the journalism major in the Bachelor of Communication program at Mount Royal University, in Calgary, Alberta, Canada.
Category: Opinion
About the Author (Author Profile)
Markham began his journalism career writing columns in the mid-1980s for Western People Magazine, then reported for a small Saskatchewan daily. He has spent most of his career in media and communications, likes to dabble in politics, was actively involved in economic development for many years, thinks that what goes on in the community is just as important as what happens provincially and nationally, and has a soft spot for small business (big business, not so much). Markham is a bit of a contrarian and usually has a unique take on the events of the day.
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