Deregulate broadcasting – but with full accessibility
A proposal to remove nearly all regulation from Canadian specialty TV channels. In return for this licence to print money, everything has to be made accessible
The Open & Closed Project proposes that most broadcasting in Canada should be almost completely deregulated. Only over-the-air broadcasting would be regulated in a manner resembling how cable, satellite, and over-the-air broadcasting are regulated now. But all programming in all methods of transmission – including over-the-air, cable, satellite, wireless, and online – would have to be accessible. And those accessibility features would have to be carried out according to independently-developed, tested standards – ours.
PRINCIPLE:
Only one kind of broadcasting uses scarce public spectrum
The Broadcasting Act defines broadcasting as
any transmission of programs, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus
But only “radio waves,” that is, over-the-air broadcasting, use scarce public spectrum.
- It’s scarce because there’s only so much room in the electromagnetic spectrum. Nature isn’t making any more megahertz.
- It’s public because, also according to the Broadcasting Act, broadcasting “makes use of radio frequencies that are public property.”
But digital broadcasting of the form found on cable or satellite TV is not “scarce”; you can make more room just by doing a bit more compression or launching a new satellite. It does not use “radio frequencies that are public property”; these cable and satellite broadcasting feeds are creatures of MPEG, not of radio waves beamed into your house by an antenna.
Hence, it is our position that only the scarce public spectrum deserves to be regulated by the Broadcasting Act. It is a limited public good that would be overrun by commercial interests without the presence of safeguards to the contrary. But cable and satellite broadcasting are not scarce and don’t use radio waves owned by the public. We see no reason to regulate them.
PRINCIPLE:
The rights of people with disabilities trump broadcaster rights
The Charter of Rights and Freedoms and the Canadian Human Rights Act both ban discrimination on the basis of disability. The Charter is the supreme law of the land, and the Human Rights Act supersedes other laws of federal jurisdiction.
The principle of superiority of disabled persons’ right to be free of discrimination was confirmed in the case of Vlug vs. CBC, which concluded that a lack of captioning violated the rights of a deaf viewer. Even counsel for the defence in that case argued that the Human Rights Act trumped the Broadcasting Act.
Even if one could argue that the Broadcasting Act and the Canadian Human Rights Act have equal weight, a rational case cannot be made that the Charter has equal weight with other laws. Hence, as a matter of principle, the right of people with disabilities to be free of discrimination – as in accessibility of television programming – trumps broadcasters’ rights to provide an inaccessible service.
SOLUTION:
Deregulate everything but true broadcasting
In this proposed reconfiguration of Canadian broadcasting, cable- and satellite-based channels (most of which are digital specialty channels) would be completely deregulated. We really mean “completely.” There wouldn’t be any more rules about genre of programming, quantity of advertising, Canadian content, or anything else. Specific channels would not have to be carried or tied to carriage of other channels. Nor would fees for carriage be required. Broadcasters would have to comply with the Criminal Code, but all persons and all companies in Canada already must.
Over-the-air broadcasting, in analogue or digital form, would continue to be regulated. In fact, regulation could be dramatically increased for these broadcasts, as by doubling or tripling requirements for Canadian content, specifically Canadian drama and movies.
We repeat: It is only the scarce public spectrum used for over-the-air broadcasting that has any rational basis for regulation in the first place.
This system would be a bonanza for Canadian broadcasters. They could use the free market to determine their own programming, proportion of advertising, and carriage. The free market would be allowed to function virtually unimpeded in digital specialty broadcasting and with any other channels or services that do not use over-the-air spectrum.
At the same time, broadcasters’ costs for over-the-air broadcasting would not be significantly changed, since those channels are already regulated.
But full accessibility would be required
In return for this deregulation of everything but antenna broadcasts, all programming of all types, without exception and on all forms of carriage, would have to be accessible.
In specific, that means:
- All English- and French-language programming transmitted over-the-air and by cable, satellite, wireless, and Internet would have to be captioned. That includes programming subtitled into English or French.
- All or most such programming would have to carry audio description.
Those rules would apply to every minute of every clock hour of every day, week, and month of the year, including commercials, promos, bumpers, and everything else. “Programming” does not just mean “shows”; it means everything one can possibly watch.
All media are covered
We emphasize again that delivery method means nothing for the accessibility provisions. If you run a program on an over-the-air station, then rerun it on a digital specialty station, then stream on your Web site, and then sell it on iTunes, all such presentations have to be accessible.
Format of transmission matters for deregulation, since only over-the-air broadcasting uses scarce public spectrum. But people with disabilities have a right to accessible programming everywhere.
Accessibility must be done according to our methods
The Open & Closed Project is the only research project that aims to independently research and develop standards for captioning and description, among other things. We will do this in an open process to which everyone can contribute. Where research is missing, we’ll do it ourselves.
When we’re done, we’ll have a set of standards for captioning and description that we will test in the real world for a year to prove they work. Then we’ll publish the final standards for free download. (You’ll be able to buy physical copies at a cost.)
We will, moreover, train and certify practitioners so that producers and broadcasters will have confidence their contractors know what they’re doing.
There is no alternative to our plans. Ad hoc captioning and description are crumbling before our very eyes. A race to the bottom has been going on since the early 1990s and now threatens to reduce captioning to computerized voice recognition or wall-to-wall scrollup done by foreigners who don’t speak English or French. The same effects are detectable at edges of the audio-description industry. Standards are needed, and only our standards will work because only ours will be independently developed and tested.
Of course this is a ploy for funding
This is nakedly a ploy for funding. As part of the deregulation package, the Open & Closed Project would have to be fully funded, which would cost about $7 million (or maybe $15 million if we wanted results twice as fast). This is peanuts.
What you get in return for this mandated and guaranteed funding for the Open & Closed Project is a licence to print money. Your over-the-air stations could carry on almost exactly as before, while you use cable and satellite channels to rake in the cash.
This ploy for funding is not, however, insincere; it is based on principle.
Regulation could still exist
Proponents of Canadian protectionist regulation should remain assured that the regulations on which they have built their careers and business models could stay in place; they would merely be limited to antenna broadcasters. And those regulations could actually be tightened.
In essence, we see no reason to impose Canadian-content or other regulations on forms of broadcasting that do not use public property. We don’t think anyone can make a rational case to the contrary.
Next steps
The Open & Closed Project has already petitioned the CRTC for a hearing to consider this deregulation proposal. We will additionally submit the proposal to relevant parties, like broadcasters and their lobbyists. We’re going to make them an offer they cannot refuse.
FAQ
- What about Canadian-content requirements?
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They would disappear for everything but over-the-air broadcasters. We can tighten CanCon rules for them if we wish. CanCon requirements are a form of regulation; we’re deregulating everything but antenna broadcasting.
This does not mean that CanCon levels would plummet. Creators would use the free market to sell their shows. If it’s good and it’s also Canadian, it’ll sell. But if Canadian is all it is, maybe it’ll sell to the over-the-air broadcasters. Just like today, in other words.
Creators have argued two sides of the coin for decades: That Canadian programming is world-class and that Canadian programming is so fragile it needs government intervention to survive. The Open & Closed Project deregulation plan finally separates those diametrically opposed arguments. Culturally relevant but unprofitable programming, or just poor-quality programming, that happens to be Canadian could air on over-the-air broadcasters. Profitable programming that happens to be Canadian, with or without any cultural relevance, would fend for itself in the free market.
To put this in concrete terms, there may be a credible reason to fund Corner Gas and broadcast it over the air on CTV. There is no discernible reason to fund Keys to the VIP and broadcast it on digital cable. In this new plan, the producers of Keys to the VIP or its ilk would have to make a rational argument for its existence.
Our plan says nothing about taxation. Tax credits and incentives would remain untouched.
- What exactly is a broadcaster?
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This is a vexing question of the day. Does a startup venture that streams original fictional programming solely on the Web count as a broadcaster? We don’t know. We also don’t think it’s relevant. This plan pertains only to broadcasters holding CRTC licences. It is their online arms that the accessibility provisions also cover.
We can imagine some complexities in this arrangement, but they are not insurmountable. For example, an independently-produced TV series that airs on a licensed broadcaster would have to be made accessible in perpetuity in all relevant media. (DVD and other physical media are not “broadcasting” and clearly are not covered, but over-the-air, cable, satellite, and Internet transmission clearly are covered.) A TV series that starts out on an indie Web stream and ends up on a licensed broadcaster would have to be made accessible starting with its appearance on that broadcaster.
- Aren’t over-the-air broadcasters dying anyway?
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They may be, but our plan says nothing about which broadcasters, or which individual stations, need to exist. Whatever is still standing would be covered.
- Won’t the digital transition affect these plans?
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Not if digital broadcasting is still carried out over the air using scarce public spectrum.
- What about third-language programming?
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We don’t have an answer there yet. Many languages can be and are easily captioned, such as Italian and Spanish. Others could be captioned with more difficulty. Shows in many languages can be audio-described.
- Why not 100% audio description of all programming?
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Because some programming legitimately cannot be described, such as live news breaks and some live programming, and because some other programming does not need full-fledged audio description. For example, some newscasts can be made fully accessible just by having reporters, hosts, or narrators read out onscreen text, a provision that could become part of our standard. (It is already a licence “expectation” of some broadcasters, who simply ignore it.)
- What about broadcasts from other countries that don’t comply with Open & Closed Project standards?
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Our standards would apply to captioning and audio description carried out in Canada, not all programming aired in Canada. Don’t worry; we’ll be working on the foreigners too.
- Isn’t the CRTC obliged to regulate broadcasting?
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It has that power but may refrain from doing so.
- Why is this limited to Canada?
We had to start somewhere.
Required features that would be optional under this plan
For deregulated broadcasters, the following requirements would cease to exist. (It is not an exhaustive list.) They could all be renegotiated and imposed via free-market forces. Or, if the free market cannot support them, they would disappear completely. For regulated broadcasters, the following requirements, among others, could be tightened and increased.
- Quotas of every kind – for CanCon, for new vs. rerun programming, for programming in specific languages, and all others
- Limits on minutes of advertising per hour
- Fees for carriage
- Fees paid by subscribers
- Rules for equitable portrayal of defined groups
- Rules for employment of defined groups
- Genre exclusivity
- Tying of Canadian to non-Canadian stations
- Requirement to abide by third-party “standards councils” unrelated to accessibility
Note that we are not discussing requirements like having to file for and renew a licence, filing financial balance sheets with the CRTC, and other administrative obligations that have nothing to do with programming. Nor do we have an interest in even discussing the issue of foreign ownership. We concede, then, that this means we are not “completely” deregulating the affected broadcasters, but we are deregulating them where it counts.