Submission by Accessible Media Inc. to the Standing Senate Committee on Transport and Communications Concerning its Study of Bill C-11:

an Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts October 24th, 2022

1 1. Accessible Media Inc. (“AMI”) is pleased to submit the following comments on and proposed amendments to Bill C-11:

an Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts1 (“Bill C-11”) for consideration by the Standing Senate Committee on Transport and Communications (the “Committee”) as it studies the Bill. AMI appeared before the Committee on September 28th, 2022. These comments are designed to expand on AMI’s oral presentation. 2.

This submission addresses two issues: • Support for Canadians with disabilities in Bill C-11; and • The need to ensure that the Canadian Radio-television and Telecommunications Commission (the “Commission”) continues to have the authority to mandate distributors, regardless of what technology they employ, to carry designated programming services on terms specified by the Commission. Support for Canadians With Disabilities 3.

As AMI is a not-for-profit media company that entertains, informs and empowers Canadians with disabilities, we fully support the proposed amendments in Bill C-11 designed to improve the way the Canadian broadcasting system treats representatives from the disabled community. 4. Under the current Broadcasting Act (the “Act”), which was last updated three decades ago, the only reference to people with disabilities is contained in

Section 3(1)(p), which provides that “programming accessible by disabled persons should be provided within the Canadian broadcasting system as resources become available for the purpose”. This clause was specifically referenced by the Commission when it first approved the application by AMI for AMI-tv and is the root of the Commission’s authority to impose obligations relating to closed captioning, audio description and described video. However, it is qualified by the language “as resources become available for the purpose”.

While the Canadian broadcasting system has dramatically improved the amount of accessible programming that is available, making the provision of such programming subject to available resources means the needs of Canadians with disabilities are not treated as a priority. 5. Bill C-11 improves on the current Act in two material ways. First, it would amend

Section 3(1)(d)(iii) of the Act to provide that the Canadian broadcasting system should, through its programming and the employment opportunities arising out of its operations, serve the needs and interests of all Canadians, including those with disabilities. This means that the Commission will be required to consider what is important for people with disabilities when it makes policy decisions. 6. Second, Bill C-11 would amend

Section 3(1)(

p) of the Act to provide that “programming that is accessible without barriers to persons with disabilities should be provided within the Canadian broadcasting system”. By removing the qualifying language noted above, the Government is signalling that it expects that Canadians with disabilities will be treated like all other citizens for the purposes of broadcasting policy. 1 Bill C-11:

An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts. [2022]. 3rd Reading June 21st, 2022. 44th Parliament, 1st session. Available at: https://www.parl.ca/DocumentViewer/en/44-1/bill/C-11/third-reading

2 7. AMI believes these are critical amendments and encourages the Committee to approve them without changes. The Commission Must be Able to Mandate the Terms of Carriage for Programming Services on all Types of Broadcast Distributors 8. Under the current Act, the Commission is given broad discretion to regulate broadcasting distribution undertakings (“BDUs”), including which programming services they are required to carry, how those services are distributed and what they are required to pay for that distribution. 9. However, the BDU market is evolving.

Increasingly, Canadians are turning to Internet-delivered alternatives – so-called “virtual BDUs” (“VBDU”) – to access popular programming services. These VBDUs (like Amazon Channels) offer similar services to those offered by more traditional cable and satellite providers but use the open Internet to deliver service to subscribers as opposed to a closed managed network. And the issue doesn’t just involve foreign entities, but Canadian television service providers as well.

For example, Rogers made it clear when it appeared before the CRTC in Fall 2021 in connection with its proposed acquisition of Shaw that the future of its distribution operations involved online delivery through its SmartStream product. 10. The current regulated BDU ecosystem plays a central role in supporting the broader public policy objectives in the Act. Through the broad distribution of Canadian programming services, BDUs help to increase diversity in the Canadian broadcasting system and ensure stable funding for Canadian programming.

Unfortunately, this ecosystem has been under pressure in recent years as Canadians have been cancelling their BDU subscriptions (or reducing the number of services they purchase) to buy content from unregulated streaming options. It is expected that more and more VBDUs will launch in the future and there has already been a significant decline in the number of Canadians that subscribe to a traditional BDU. According to Commission data, BDU subscribers have declined from nearly 11.5 million households in 20132 to 9.75 million in 20213, and these numbers are expected to continue to shrink. 11. Under

Section 9(1)(

h) of the Act, the Commission can order BDUs to carry, on such terms and conditions as it deems appropriate, programming services specified by the Commission. This power has been used sparingly, but has ensured that certain programming services, specifically those that serve special interest groups and make a particular contribution to advancing Canadian broadcasting policy objectives, but otherwise would not be commercially viable, can operate and reach their target audience. 12.

While Bill C-11 is intended to address the changing media landscape by modernizing the regulatory tools available to the Commission and set up the Canadian broadcasting system for future success, as presently drafted, it does not address the changes happening in the BDU environment noted above. More specifically, if Bill C-11 is passed in its current form, the Commission will be severely limited in its ability to regulate Internet-delivered BDUs, both Canadian and foreign-owned. This is because BDUs that provide service using the Internet would not be covered by

Section 9(1)(h) (which will become

Section 9.1(1)(h)). Instead, VBDUs would fall under the definition of “online undertaking” and would be subject to

Section 9.1(1)(i), which provides that the Commission may make orders respecting: 2 See Canadian Radio-television and Telecommunications Commission, Broadcasting Distribution (Cable, Internet Protocol Television (IPTV) and Direct-to-Home (DTH)) Statistical and Financial Summaries 2013-2017. 3 See Canadian Radio-television and Telecommunications Commission, Communications Market Reports (4th Quarter 2021). Available at: https://crtc.gc.ca/eng/publications/reports/PolicyMonitoring/rad.htm.

3 . . . a requirement, without terms and conditions, for a person carrying on an online undertaking that provides the programming services of other broadcasting undertakings in a manner that is similar to a distribution undertaking to carry programming services, specified by the Commission, that are provided by a broadcasting undertaking; 13. The result of this provision is that the Commission would have the ability to require VBDUs to offer certain channels, but not mandate that they pay for them. And while

Section 9.1(9) and (10) provide that online undertakings must negotiate terms of carriage with programming services where carriage has been mandated in “good faith” and the Commission can facilitate those negotiations, the Commission would not actually have the authority to resolve the matter or impose a specific outcome. Unfortunately, this scheme is a recipe for disaster. Without the ability to set terms of carriage, including the appropriate wholesale rates, like the powers the Commission currently has under

Section 9(1)(

h) for traditional BDUs, Canadian programming services will be dramatically impacted. This is especially true for 9(1)(

h) services like those operated by AMI, which rely almost exclusively on mandated basic BDU carriage at a regulated fee to survive. 14. With declines in traditional BDU subscribers, Canadian programming services are already seeing decreasing revenue. For example, AMI has seen a reduction in its revenues of well over six per cent over the last five years. This has forced it to make difficult decisions, laying off staff and changing how it produces programming.

If the Commission’s powers are not extended to VBDUs, regardless of whether they are Canadian or foreign, numerous Canadian services will go out of business. Consequently, AMI is proposing the following targeted changes to Bill C-11, attached as Appendix “A”. It is important to highlight that these amendments are not designed to force streaming services like Netflix or Disney+, which purchase and distribute individual programs directly, to carry any Canadian service.

Instead, they are intended to give the Commission the authority to regulate what would be considered a distribution undertaking other than the fact that it uses the Internet to deliver services. We note that the Independent Broadcasters Group, APTN and OutTV have made similar representations to the Committee and we support their positions. In fact, the Commission itself noted the same concerns when it appeared before the Committee. 15. AMI would like to thank the Committee for the opportunity to provide these comments.

4 Appendix “A” 9.1

(1) The CRTC may, in furtherance of its objects, make orders imposing conditions on the carrying on of broadcasting undertakings that the CRTC considers appropriate for the implementation of the broadcasting policy set out in subsection 3(1), including conditions respecting (

i) a requirement, without terms or conditions, for a person carrying on an online undertaking that provides the programming services of other broadcasting undertakings in a manner that is similar to a distribution undertaking to carry, on the terms and conditions that the Commission considers appropriate, programming services, specified by the Commission, that are provided by a broadcasting undertaking; Note: this amendment would empower the CRTC to issue orders that require VBDUs to carry programming services specified by the CRTC similar to how it issues 9(1)(

h) orders today. It would not give the CRTC the ability to require a subscription video-on-demand (“SVOD”) services (like Netflix or Disney+) to carry programming services operated by other companies unless the SVOD service chooses to offer such services. Good faith negotiation

(9) The person carrying on an online undertaking to whom an order made under paragraph (1)(

i) applies and the person carrying on the broadcasting undertaking whose programming services are specified in the order shall negotiate the terms for the carriage of the programming services in good faith. Facilitation

(10) The CRTC may facilitate those negotiations at the request of either party to the negotiations. Note: as the CRTC has been given the power to impose terms and conditions under paragraph 9.1(1)(i), paragraphs 9.1(9) and (10) are redundant. 10

(1) The CRTC may, in furtherance of its objects, make regulations (

g) respecting the carriage of any foreign or other programming services by distribution undertakings; Note: this amendment to the language in the current Act would give the CRTC the authority to regulate carriage and packaging for both BDUs and VBDUs.

5 About AMI AMI is a not-for-profit media company that entertains, informs and empowers Canadians with disabilities. Operating three broadcast services, AMI-tv and AMI-audio in English and AMI-télé in French, AMI’s vision is to establish and support a voice for Canadians from the disability community, representing their interests, concerns and values through accessible media, reflection and portrayal. For more information, please visit www.ami.ca.