Canada's CRTC shakes up the digital broadcasting landscape: Sometimes a “broadcaster” isn’t just ‎a broadcaster

Streamers, podcasters, platforms, social media sites, news, radio services and even adult websites—all falling within the broad concept of an “online undertaking”—need to pay attention to the latest from the Canadian Radio-Television and Telecommunications Commission (CRTC), as the regulatory scope is expansive to say the least. The CRTC is advancing a regulatory plan that would effectively regulate podcasts and streaming services, amongst a host of others, in Canada. Broadcasting Regulatory Policy CRTC 2023-331 enforces conditions of service on specified online undertakings operating in Canada, potentially subjecting them to reporting, filing and, perhaps eventually, even content obligations.

The CRTC’s latest vigor demonstrates a need to monitor the status of these ongoing consultations and consider submitting comments to the CRTC on issues that may impact their Canadian operations. Listening to the government talk about the Online Streaming Act, formerly known as Bill C-11 and the legislation under which the CRTC is operating, the scope at first appeared to target “media giants” and the procurement of supplementary Canadian and Indigenous content in Canadian media. However, now the CRTC is mandating streaming services making $10 million or more in Canadian revenue annually to register and provide details of their activities, so that the CRTC can learn more about the landscape and establish a regulatory posture. Again, we note that Canadian revenue is the primary exception to the CRTC’s sweeping mandate (there are exemptions for online services that only provide video game services or ‎audiobooks)‎, the apparent concerns immediately centre around the CRTC’s alleged ‘de minimis’ registration requirements which may be the first stage in a broader regulatory framework to come.

Although the move has drawn recent criticism, many players in the streaming and online service universe think otherwise. The CRTC reiterates that various “major” streaming and online services, as well major Canadian associations representing motion pictures and broadcasters, “agreed with the proposed registration requirements, and considered them to be light.” Popular tech and media personalities, among others, have shared their interpretations of the regime with their immense follower base.

This move comes as a part of a realization of the Online Streaming Act, which aims to modernize the Broadcasting Act in Canada. As part of the Online Streaming Act, the CRTC issued the first of its decisions in relation to its new powers on September 29, 2023. This will require online broadcast undertakings with a modest (C$10M/year) amount of Canadian revenue to eventually fall under the CRTC’s three-phase regulatory plan. As the November 20 hearing is approaching, the discussions around how broadcasters and online undertakings will support Canadian and Indigenous content will continue to ramp up.

Implementation

The CRTC is aiming is to ensure online streaming services are making meaningful contributions to Canadian and Indigenous content, and while the Online Streaming Act does not define what that content is or the support required from streaming and online services, it delegates that task to the CRTC. Part of this regulatory plan includes the creation of the Online Undertakings Registration Regulations which necessitates that online undertakings which broadcast audio or audio-visual content that is intended to inform, enlighten or entertain must be registered with the CRTC by November 28, 2023.

Services that may be categorized under the umbrella of an ‘online undertaking’ include:

• streaming services,
• social media services,
• subscription television services that are available online,
• radio stations that live-stream over the Internet,
• services that offer podcasts (free or paid subscription), and even the podcasters themselves under certain conditions, the CRTC expressly states that podcasters who host content “on their own websites or make them available on a subscription service platform other than a social media service are not explicitly excluded [… but may not…] be required to register because their annual revenues, in most likelihood, would be below the proposed exemption threshold.”
• services that offer unique transactions allowing the user to stream or download content.

First, the CRTC’s imposed regulatory requirements for broadcasting services includes setting out which streaming services need to provide information about their activities in Canada. The Commission defines a streaming service as being an online streaming service operating in Canada, which offers broadcasting content, and earns $10 million or more in annual revenues. These entities will need to complete a registration form no later than November 28, 2023. Second, the CRTC is establishing conditions on online streaming services to operate in Canada, which have already taken effect on September 29, 2023. The obligations include providing the CRTC information related to the online streaming services’ content and subscribership, and ensuring their content is available in a way that is not tied to any specific mobile or Internet service.

The move involves compulsory registration rules imposed on audio and visual services which recognizes the impact that Internet audio and video services have made on the Canadian broadcasting system. The rules on audio and visual services are more stringent than those on large streaming services, and provides the CRTC with de minimis information about Canadian online undertakings and their activities. Building on this information, the Commission will be able to assess whether further obligations are required in the near future.

You can find the CRTC news release describing the CRTC’s approach towards it’s modernization plan here, and more information from the CRTC about the Broadcasting Regulatory Policy and Broadcasting Order here.

The CRTC’s regulatory plan

The modernization will involve open and public consultations which will take place as follows:

Phase 1

Spring 2023

• April 27: Online Streaming Act (Bill C-11) receives Royal Assent.‎
• May 8: CRTC publishes its Regulatory Plan.‎
• May 12: CRTC publishes an Information Bulletin

Public Consultations

• Consultation on contributions to the Canadian broadcasting system
• Consultation on registration of online streaming services
• Consultation on exemption orders and basic conditions of service

Phase 2

Summer/Fall 2023

• Consultation on registration of online streaming services
• CRTC publishes updated version of its Regulatory Plan
• Engagement on definitions of Canadian and Indigenous content

Winter 2023-2024

• Consultation on definitions of Canadian and Indigenous content
• Consultation on tools to support Canadian music and other audio content
• Consultation on programming and supports for video content
• Consultation on local markets access and competition
• Consultation on protecting Canadian consumers

Phase 3

Targeting launch: Late 2024

• This will focus on implementing policy decisions. More on Phase 3 ‎will be included in the future.