The following article was submitted to Playback by a group of independent broadcast executives, including: Joseph Chan, president, Fairchild Media Group; Martha Fusca, president and CEO, Stornoway Communications; Suzanne Gouin, president and GM, TV5 Québec Canada; Jean LaRose, CEO, Aboriginal Peoples Television Network; Slava Levin, president, Ethnic Channels Group; Cal Millar, VP and GM, Channel Zero; and Bill Roberts, president and CEO, S-Vox

The genre protection rules established by the CRTC consist of two distinct components, with two distinct goals.

The first rule is directed at limiting the distribution in Canada of foreign services that are partly or fully competitive with licensed Canadian services. The second is intended to limit the licensing of a number of Canadian services in one genre of programming, so that the onerous requirements of services licensed to Canadians with regard to the exhibition of, and the expenditures on, Canadian programming can be met, maintained and increased.

Secondly, nowhere do the BDUs mention that both these rules were established to ensure that the objectives of the Broadcasting Act are furthered. Such furtherance is the express legislative mandate established for the CRTC by Parliament. These objectives require the development and maintenance of a distinctive Canadian broadcasting system that meets the cultural goals set out by Parliament for broadcasting.

The overarching goal is the provision of a preponderance of diverse programming produced in Canada, by Canadians, for Canadians – programming that reflects and serves, amongst other Canadian realities: Canada’s linguistic duality, its Aboriginal Peoples, its multicultural and multiracial nature, and its social, political and economic aspirations, all the while welcoming programming from international sources.

The genre protection applied to foreign services was established to prevent, generally, the distribution in Canada of foreign services that do not serve the policy objectives of Canada’s legislation, but are competitive with Canadian services that do. It was meant at the same time to encourage Canadian services to partner with foreign – mostly U.S. – services, and to complement their programming schedules with American fare, while meeting their Canadian content requirements.

The net result is a country that offers a choice of broadcast programming amongst the widest in any country in the world, while nurturing a vibrant broadcasting system of its own. All this despite the fact that there are only some 10 million Canadian homes to which programming is distributed in the English language, and all of them are in the shadow of the world’s most prolific producer of media entertainment in the English language, with a population of some 300 million people over which to amortize its costs.

The genre protection afforded Canadian services was established to limit to one service each genre, narrowly defined and therefore permitting a number of sub-genres – for example, a sports channel and a regional sports channel, and a wide variety of entertainment and information services. The intent is to ensure that the Canadian services, given the commercial realities they face, can each meet, maintain and increase their Canadian content requirements, in conformity with the requirements of Canada’s Broadcasting Act.

Rather than questioning whether its rules stifle competition, the regulator is required by law to examine whether they enhance the achievement of the legislated objectives they are responsible to further, and whether their relaxation or elimination would reduce the ability of the system to meet such objectives.

Interestingly, amongst dozens of the legislated broadcasting objectives, nowhere is to be found a mention or a hint of competition, or reliance on market forces as a goal or as a means of achieving the Canadian broadcasting policy.

If competition or market forces were indeed a goal to be pursued in the interests of consumers, or a discipline to be relied on to meet the goals of the Broadcasting Act, the cable industry should press not for a free hand in choosing which American services to bring to Canadians, but for the open entry into Canada of American satellite distributors such as DIRECTV and DISH Network. Such entry would allow Canadian consumers to choose from which distributor they would like to receive HBO and ESPN and Nickelodeon.

It would also be interesting to see, if the cable and satellite industries were free to import the American services of their choice, whether Rogers, the licensee of the sports channel Sportsnet, which it brings into the homes of every subscriber it serves as part of the mandatory basic services everyone must pay, would choose ESPN as the first foreign service to distribute, while allowing consumers to freely choose between the two sports services they want to receive and pay for.

Moreover, the way to bring into the system and maintain small Canadian broadcasting players not aligned with the recent wave of consolidation is not to abandon the regulatory system that gives such players a sustainable opportunity to provide the diversity of Canadian voices and choices required by the Broadcasting Act. It is rather to ensure that rules aimed at giving independent players a fair chance to participate are reinforced. Driving small independent Canadian licensees out of business does not serve the objectives of the Broadcasting Act.