CACTUS submission to the CRTC on community media and new media broadcasting

Today was the deadline for submission to the CRTC for the CRTC's public consultation on new media broadcasting in Canada. What follows in CACTUS' submission, responding to concerns about how regulating new media broadcasting might effect community television.

The Canadian Association of Community Television User Groups and Stations (CACTUS)
830 Cite des Jeunes, #6

(819) 772-2862

Friday, December 5, 2008

Re: Broadcasting Public Notice CRTC 2008-11
Canadian Broadcasting in New Media

Dears Sirs and Mesdames,

1) I am writing on behalf of the Canadian Association for Community Television Users and Stations (CACTUS), which is building a bilingual national membership of independent community television channels, cable co-op community television channels, some (typically smaller) private cable companies that still practice community access television, and the public who uses and watch them.

2) I would like to state that I am not a “new media” expert in the sense of understanding the current state of the technology, bandwidth available in different parts of the country, the likelihood of this bandwidth to increase in the near-to-long-term, or how likely it is that this bandwidth will be sufficient to support, for example, streaming of live HD video. Therefore, I will state certain assumptions that underlie my arguments, knowing that they may change over time.

3) While I am not a new media expert from a technology point of view, I am nonetheless--and most of CACTUS members are--experts in thinking about policy-making with respect to the democratic use of media platforms. My comments are therefore made from the point of view that the Internet, as with other distribution platforms before it, should be structured in as democratic a fashion as possible with respect to the ability of individual Canadians to access content created by others, as well as to make available their own content for sharing with other Canadians and internationally.


4) While traditional television media (since CACTUS’ main interest is in the production and distribution of audio-visual materials) was limited in terms of the number of distribution channels, and much of the current regulatory environment was a response to the fact that few channels were available, and therefore that the allocation and use of those few channels were important public policy interests, I am making the assumption that the Internet as a platform for the distribution of audio-visual materials is not limited. Traditional television “broadcasting” was one-to-many because of the nature of the technology. The exception was community television, which broke down this paradigm by enabling the viewers of television also to be producers, and by enabling interactive participative formats such as mobile productions or phone-in formats in which the public could directly participate in a live broadcast. The Internet is, by its nature one-to-one. Any individual can access the platform and publish content, and any individual can choose among theoretically unlimited sources of content.


5) The thrust of 2008-11 seems to be primarily one of making new definitions of broadcasting that can be applied to new media, with the longer-term goal of using these definitions to shape policy. I would caution against this approach, in that the definitions may need to evolve over time to enable policy, not the other way around. I welcome the discussion of definitions, because they help to clarify issues, but advise that CRTC commissioners should keep their eyes firmly on the long-term objectives of the Broadcasting Act and of the needs for democratic debate and participation, and remain ready to revise definitions as needed as conditions change in the unfolding new media universe. Policy-makers and regulators could easily trap themselves, Canadians, and the potential of new media by committing prematurely to certain definitions now, and feeling they can’t be revoked or re-examined later.

6) That being said, at this point in time, I think it is a mistake to use the term “broadcasting” at all when referring to the distribution of audio-visual materials over the Internet. In this, and in response to Q.1, I disagree with paragraph 22 in the Commission’s policy posting. I think shifting the idea of “broadcasting” to the Internet, in the long term, will foster an unequitable and undemocratic use of the Internet. It favours the idea that conditions should be set up now to enable traditional television “broadcasters” to survive in this new environment, even if the strengths of that new environment have to be compromised or limited to allow them to survive.

7) The term “broadcasting” (as opposed to “niche-casting”, for example), arose because of the one-to-many nature of traditional over-the-air analog distribution of television programming. While there were certain efficiencies to this kind of production and consumption of audio-visual materials, there were also serious drawbacks, to which the Internet is not prey.

8) The Internet, by its nature is about the ultimate niche-caste. Anyone can produce and distribute content for the price of server space with an ISP. Anyone can access content from almost anywhere in the world. The Internet’s great freedom and flexibility should not be warped in any way whatsoever to favour the “broadcast” many-to-one, captive audience model.

9) There is no need for “broadcasters” in new media. All that are needed are content producers. In the new environment, independent producers can directly distribute their own content, without gate-keeping by a traditional “broadcaster”, or by the second level of traditional gatekeepers—BDUs--who decide what “broadcasters” to offer in service packages.

10) The only sense in which there will be a need or niche for the organizations that we used to think of as “broadcasters” in the new media environment is their role as providers of content of a certain kind and quality. For example, there will continue to be marketing and branding advantages to larger production houses in that viewers surfing the web for content are more likely to sample and to be able to find new programs from existing and known production houses (at known web sites) than to be able to locate new producers. In this, however, there will be no difference between larger independent producers with the capacity to build a track record producing many programs and what we used to call “broadcasters”. In the new media environment, there will be just producers and viewers. Larger producers with track records will enjoy advantages of economies of scale and branding, that’s all.

11) In the same way, entities that distribute content (not necessarily the content producers) who specialize in certain topic areas will enjoy advantages. e.g. Known distributors of quality children’s programming will have advantages over independent producers, again because of marketing and brand advantages. Parents looking for quality children’s programming are more likely to go to known names from whom they have purchased before than to search the web sites of small independents.

12) So, in this sense, there will be the potential for gate-keeping from the point of view of marketing power (unknown independents will continue to benefit from teaming together in larger units so that their content can be found), but the distinction between content producers and content distributors will be fluid at best. The role of the “broadcaster” as traditionally understood is gone. Broadcasting organizations that hope to survive need to redefine themselves as content providers or content distributors, to fit the new environment, not the other way around.

13) Therefore, in answer to Q.1 and Q.2, I also disagree with the Commission’s paragraph 23, in which it seeks to distinguish between traditional “broadcasters” and “individual Canadians producing in an individual capacity”. The only old definition that holds in the new environment has to do with genres of programming. The programs, whether they be dramas, series, or kids’ shows, will continue to survive (or seem to be so far). The Commission needs to focus its regulation on the quantity, quality and accessibility of these key cultural genres of programming just as it has done in the past, not with definitions that draw arbitrary lines between different kinds of producers of that content, lines which increasingly do not exist.

14) ISPs should be viewed in the same category as BDUs. They provide a pipeline through which audio-visual content can flow. They make profits from charging the public access to this pipe-line. They assume none of the risks nor costs of content production. The pipe-line would have no value if there were no content.

RECOMMENDATIONS: Net Neutrality (Section IV, Q. 14)

15) Net neutrality must be preserved at all costs. By this, I mean that to preserve the seemingly magical level new playing field for content producers that we call the “Internet”, ISPs should never be able to privilege the passage of certain kinds of content (video or otherwise) over others. These decisions need to be left to the users of the system. For example, a video downloaded from CNN should never have speed priority over a video downloaded from U-Tube. If 1000 people download one video from CNN for every video downloaded from U-Tube, and this means that CNN overall is getting more use of available bandwidth, that’s OK because that decision is not made by CNN in a boardroom making a private deal with the ISP; it’s a decision made by 1000 different users who elected to download the CNN video. The system must be driven by the demand side, not the supply side.

16) My assumption that there is unlimited bandwidth, may of course, turn out not to be true. It may be that given Canada’s population, if everyone wanted to download (or watch live streamed) movies at HD quality every night of the week, that we would have bottlenecks. However, as long as the demand-side runs the system, things will remain in equilibrium. For example, customers dissatisfied with live streaming of HD may say to themselves, “It breaks up, and it costs a lot because it exceeds my monthly Megabyte download quota. I’m just going to download the non-HD format, or download overnight and watch it tomorrow.” It is legitimate for ISPs to charge more for heavy downloads and thereby allocate scarce resources (thereby leaving the final allocation decision in the hands of consumers), but it would not be legitimate for ISPs to negotiate a deal with a Hollywood studio to reserve say 50% of bandwidth exclusively for HD movie nights, while all other Internet users of every content genre have to compete for the rest. HD may or may not prove viable on the Internet. It should have to prove itself as a format, in open competition with all the other types of content that use the Internet for delivery.

17) I make this comment about HD because of conversations I have had recently with community television channels around the world. One would think, on the surface, that with the introduction of digital and satellite television, that there should be more space available for public-interest and community channels. However, while there is more bandwidth, this does not necessarily translate into more channels and thereby more diversity. In many countries, traditional broadcasters are not simply using existing transmitters and switching over from an analog to a digital-encoded signal as an individual corporate decision. In many countries, governments are giving control of digital transmission to monopolies or near-monopolies. Every traditional broadcaster then has to negotiate space on the new monopoly-controlled systems of digital transmission towers. They are asking for more bandwidth per channel (enough for HD), meaning that the space available for different channels is actually less, not more in many instances, than in traditional analog broadcasting. Community and smaller broadcasters are often finding themselves left out, and left to fight political battles for space against overwhelmingly larger organizations.

18) In order to draw a line between “professional” and “non-professional” broadcasting, there has been a trend in traditional broadcasting to continually raise the bar on what is acceptable from a technical “quality” point of view, from VHS, to U-matic, to Beta, and now HD. Not meeting the current quality standard has been used as a way to keep many smaller producers off the air over the years (even though people have been happily watching television ever since it achieved VHS quality). I would caution the Commission against any structuring of the Internet that would assign traditional “broadcasting” organizations any kind of bandwidth advantages in the new media environment. They should be left to compete openly, and new technologies also must compete and demonstrate that people really want them through choices in pricing. The environment itself must not be warped or limited.

RECOMMENDATIONS: Canadian Content (Section III – Q.8)

19) For the moment, and assuming the level playing field environment of an Internet that is content-neutral and has unlimited capacity, the old CanCon rules with respect to the amount that a given organization (traditionally, a “broadcaster”) should produce that is Canadian versus non-Canadian no longer apply. Where there are no borders and no limits on channel capacity, CTV or Global is just a citizen of the world, with the same options for producing and publishing content on the Internet as any other individual Canadian.

20) CanCon policies therefore should shift their focus in new media mostly to funding support. That is, in a environment where anyone can find any program at any time, you can’t make Canadians seek out Canadian content, but you can make sure that Canadian content is available in genres that are:

a) considered culturally important, such as local programming, news, social and political debate, educational programming for children, drama.

b) expensive to produce given the continuing relatively small market of Canadian viewers. For example, it’s not necessary to provide financial support to bloggers, in general. Anyone with a digital camera and a computer can produce a decent blog. As long as some categories of audio-visual programming remain expensive to produce, however, funding support will be needed.

21) Because ISPs (as noted in the “Definition” section above), will be functioning like BDUs in the distribution of such culturally key video genres, and are charging the public fees for access to a pipeline that will flood them with non-Canadian content, and that that pipeline has no value without content, and that the ISP assumes none of costs nor the risks of that content production, it is reasonable to apply a similar tax on ISPs to that currently charged to BDUs for the production of Canadian content in culturally important categories. In this, I agree with the assessment done by Eli Noam.

22) I do not feel that this needs to be a separate “new media” fund if the genres to be distributed are traditional linear audio-visual streams. ISPs should be asked to contribute similar percentages of the gross revenues they accrue from video distribution to existing funds such as the CTF and to the community programming sector.

23) As they are now, these funds should be available to content producers who can produce in these culturally key genres. As you are seeing, there is no place for “broadcasters” per se in this new system. Their place and raison d’etre was on “broadcast technologies”. To compete in the new media environment, they exist only as content producers (or content distributors).

24) To continue on from my own paragraph 19, the only situation in which CanCon rules as far as percentages of production carried out or distributed by a given organization should be required to be Canadian is if we find over time that the marketing advantages of key “brands” of program distributors (e.g. a known brand like Global that in the future decides to sell programming on-line) means that everyone is shopping for programs from a few key web sites who have the resources and algorithms to make sure they are favoured by search engines. If we find in practice, that such key distributors favour non-Canadian content, some kind of percentage rules might have to be applied. Hopefully this will not happen, but this is a situation that will need to be reviewed over time.


25) My comments with respect to the role of community broadcasters follow from my comments on CanCon in general. As a culturally significant category of programming as identified by the Broadcasting Act, funding support needs to continue to be provided for community-access production centres, but this funding does not need to distinguish between distribution via traditional means (television) and the Internet. ISPs, like BDUs, should contribute production funds to this sector.

26) Already, the most advanced community-access production centres around the world are platform-independent. That is, they typically hold at least one community radio and television license, they often provide free access to the Internet and free training for individuals, small business, and NGOs to design web sites, and they may even embody live theatre or other facilities. What is important is that there is funding support so that these centres can exist, in local communities where all Canadians can access them easily. Such access centres enable Canadians to develop messages and a voice that they can then share with other citizens in their own community, across Canada, or around the world.

27) As CACTUS has reiterated at other CRTC hearings, production and operational support for community access centres is THE most efficient use of public funds for generating Canadian content, because the use of volunteers acts as a multiplier. A relatively small pool of equipment and training staff is shared and skills are disseminated throughout the community. Throughout the history of community television in Canada, 5 or 6 paid staff and the volunteers they enable in a community have routinely been able to produce as much as 35-40 hours of new local television production per week, in every imaginable genre.

28) With the advent of small but high-quality digital cameras that are much less reliant on artificial lighting, most of the old technical quality distinctions between “community TV” and “professional TV” have ceased to exist. The same production technologies are available to individual Canadians, and this is one reason why there should be no distinction between “professional” and “non-professional” production from the point of view of the Commission. For more than 30 years now, community television policy has refuted this distinction. The popularity of sites like “You-Tube” underscore this point.

29) There are occasionally comments made that with these cheaper production technologies and the availability of distribution outlets like “You-Tube”, that community access production centres are no longer required. Nothing could be further from the truth. The popularity of “You-Tube” demonstrates that even without proper funding, individuals will find a way to self-publish video. What “You-Tube” lacks, however, is the teaching and critical community-development platform that are provided by community access centres. Content quality, ultimately is driven by message, not by picture and audio quality. For a healthy democracy at a national level, and for healthy communities, there needs to be a physical meeting place in communities where people can discuss and design media together, and learn to make sophisticated media messages that can effectively reach both those in their own communities, across Canada, and around the world.

30) Both the production centres, and accessibility by citizens to all distribution platforms (including conventional television, the Internet, and whatever we dream up tomorrow) continue to be critical.


31) I have been sympathetic to the Commission’s recent claims to want to “simplify and stream-line regulation” in order to meet the goals of the Broadcasting Act.

32) At the same time, I believe, as Richard Ward of the CMES articulates in his submission to this process, that for the free market to function effectively, it must be effectively regulated to keep it free. The stronger the media companies and interests involved, possibly the stronger this regulation needs to be. Not “strong” in the sense of complex or invasive, but strong in the sense of forward-looking, coherent and fair.

33) At the diversity hearings (and also in this process), the Commission has raised the issue of cross-media ownership, and editorial independence of newsrooms.

34) It is my view that the kind of complex (and probably unenforceable) rules that would have to be introduced to guarantee editorial independence of newsrooms owned by the same media organization have been necessitated as a second level of regulation because the Commission did not do its job at the first level… in limiting media concentration and control of the airwaves in the first place.

35) In a truly competitive media marketplace, I would cheer small news organizations that reused the same content on Internet, in newspapers and on affiliated radio and television channels. Why not? Makes sense. Saves money. This exact strategy is used at the multi-platform community access centres I described in paragraph 26. Someone walking into a community access centre who has an important message is encouraged to simultaneously tape a radio and TV program, in front of a live studio audience, and perhaps post a blog about it afterwards. People want to maximize and leverage the reach of their messages, in the most efficient way.

36) This kind of cross-fertilization among newsrooms would not have represented a threat to diversity if the organizations in question were relatively small. It’s only that too much concentration has been allowed to happen, that the newsroom collaboration represents an additional threat.

37) In the same way, because BDUs have been allowed to concentrate too much, smaller content providers such as the Weather Network and others come to you demanding Category 1 license protection. They rightly describe a situation in which their business model depends on carriage by just 3 or 4 massive BDUs, and that they therefore have no bargaining power when they sit down to negotiate. So, they come to you for protection and regulation, which would not have been required if you were doing the job of maintaining a diverse and free market among BDUs in the first place.

38) So, I suggest to you that the best way to simplify regulation is to keep the market free in the first place, so that you’re not playing catch-up later with impossiblly powerful media entities and Byzantinely complex policies.

39) With respect to the Internet, this means you must keep it a level playing field at all costs. Maintain net neutrality. Keep the public in control of choices, and do not disfigure it to maintain an outmoded notion of what constitutes “broadcasting” and “broadcasters”. Let them compete with every individual out there holding a video camera. Let’s keep the “new” media environment genuinely “new” and FREE.