Broadcasting Regulatory Policy CRTC 2022-47

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References: 2019-90 and 2019-90-1

Ottawa, 23 February 2022

Public record: 1011-NOC2019-0090

Annual Digital Media Survey

In Broadcasting Notice of Consultation 2019-90, the Commission called for comments on a proposal to administer a new survey to licensed broadcasting undertakings in order to gather information on the activities of digital media broadcasting undertakings (DMBUs) in Canada and monitor how these activities are changing in an increasingly digital environment. The Commission proposed to collect this information pursuant to paragraph 4 of the Exemption order for digital media broadcasting undertakings, which is set out in the appendix to Broadcasting Order 2012-409.

After reviewing the submitted interventions, the Commission came to the preliminary view that an expansion of the scope of the proposal was necessary in order to achieve its stated objectives and therefore issued Broadcasting Notice of Consultation 2019-90-1. In that notice, the Commission reopened the record of this proceeding and called for comments on proposed modifications to the survey and its administration. In particular, this included an expansion of the proposed respondents to include both Canadian and non-Canadian DMBUs that provide services in Canada and a proposal to implement a threshold approach in order to determine which undertakings would be required to complete the survey.

Following its review of the complete record of this proceeding, the Commission approves the launch of the Annual Digital Media Survey, which will be administered to all DMBUs that operate in whole or in part in Canada and that meet the thresholds set out in Appendix 1 to this regulatory policy. Responses to the survey for the 2020-2021 broadcast year must be filed by 30 June 2022. Subsequent surveys will be administered each fall with a filing deadline of 30 November. Templates of the survey forms are included as Appendices 2 and 3 to this regulatory policy.

Given the commercially sensitive nature of some of the data that the survey will collect, the Commission considers it appropriate to exercise its discretion to vary the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure and grant full confidentiality against any disclosure of data at the level of individual DMBUs. The Commission will determine at a later date if the collected data will be published in aggregate form and, if so, the appropriate level of detail to disclose.

Background

1. The Commission currently, via its Annual Broadcasting Survey, collects data on the traditional broadcasting activities of licensed broadcasting undertakings as well as some exempt broadcasting undertakings, such as exempt broadcasting distribution undertakings, in order to properly regulate and supervise the Canadian broadcasting sector. This data ensures that the Commission and stakeholders will have the necessary information to create and inform appropriate regulatory policies as well as to ensure compliance with the Broadcasting Act (the Act), various Commission policies and individual conditions of licence. With respect to digital media broadcasting undertakings (DMBUs), the Commission, with few exceptions,^{Footnote 1} has not been directly collecting data pertaining to their broadcasting activities in Canada. The Commission does, however, have the authority to do so pursuant to paragraph 4 of the Exemption order for digital media broadcasting undertakings (DMEO), as set out in the appendix to Broadcasting Order 2012-409.
2. On 31 May 2018, in response to the Governor in Council’s request for a report on future programming distribution models,^{Footnote 2} the Commission published the report Harnessing Change: The Future of Programming Distribution in Canada (the Harnessing Change report). That report identified an increasing reliance on the Internet as a means of consuming information and entertainment. It also highlighted the need to better understand the shift to digital media as well as the opportunities and risks for traditional broadcasters. On 28 March 2019, in response to the findings outlined in that report, the Commission issued Broadcasting Notice of Consultation 2019-90, which is discussed in greater detail in paragraphs 5 through 8 below.
3. On 10 January 2019, in response to a call for comments issued by the Broadcasting and Telecommunications Legislative Review Panel (BTLRP), the Commission submitted a report, the CRTC written public submission to the Legislative Review Panel, in which it made the following statement: “New legislation should grant the CRTC explicit statutory authority as well as flexible tools to regulate services, both domestic and international, including online service providers, who offer audio or video services in Canada and benefit from the creative, economic and social advantages of operating in this market.” The Commission also stated in that submission that “[its] authority over certain exempt services operating in Canada is not always recognized by those services” and that, “to be an effective regulator, [it] must have the explicit authority to collect information from all services that operate in Canada’s broadcasting system.”
4. Additionally, the Commission, in its 2019-2020 Departmental Plan, indicated that it would gather new information from broadcasting undertakings on their digital media activities through the Commission’s Annual Broadcasting Survey.

Issuance of Broadcasting Notice of Consultation 2019-90, first round of comments and preliminary review of the public record of this proceeding

5. As a step towards meeting the objectives outlined above, the Commission issued Broadcasting Notice of Consultation 2019-90, in which it called for comments on a survey form that it proposed to administer to licensed broadcasting undertakings as part of the Commission’s Annual Broadcasting Survey. In that notice, the Commission stated that it had the authority to collect the requested information under paragraph 4 of the DMEO and that the survey would serve the following purposes, as set out in paragraph 6 of that notice, which reads as follows:

   6. The data collected through the survey would inform the Commission and stakeholders on the evolution of online business models and their impact on traditional broadcasting services. It would also help ensure the creation of an accurate picture of the digital media activities of licensed Canadian broadcasting undertakings. Among the Commission’s specific objectives for the survey are the following:

   • to obtain first-hand data on digital media in the Canadian broadcasting system in order to gain a better understanding of how licensees are adapting their activities in an increasingly digital environment, and of the overall state of the broadcasting system;
   • to initiate the collection of annual data in order to analyze and monitor trends;
   • to obtain baseline data in order to inform and measure the impact of any future Commission determinations affecting digital media broadcasting activities in Canada;
   • to inform the industry and all stakeholders on the state of digital media broadcasting in Canada through the publication of aggregate data; and
   • to collect only the minimum amount of information necessary to achieve the above objectives.
6. The proposed survey form was set out in the appendix to that notice, and the Commission specifically sought comments on the following matters, as set out in paragraphs 8 and 9 of that notice, which read as follows:

   8. In light of the above, the Commission calls for comments on a new, annual digital media survey, to be administered to licensed broadcasting undertakings as part of its fall 2019 Annual Broadcasting Survey. The proposed survey form is set out in the appendix to this notice. Specifically, the Commission seeks comments on the following:

   • whether any of the items in the survey form should be modified or deleted, or whether any new items should be added, so as to ensure that the Commission receives an accurate picture of the digital media broadcasting activities of licensed Canadian broadcasting undertakings while minimizing the administrative burden that completing the proposed survey would place on them; and
   • the Commission’s proposal to collect data by service.

   9. The Commission also seeks comments on its proposal to publish, on an aggregate basis, data on digital media broadcasting activities in Canada to be provided on the survey form, and the appropriate level of confidentiality that should be granted to any information provided on the survey form, including the public interest benefits of disclosing the information when compared to the associated potential harm.

7. In their submissions, numerous interveners expressed the view that the proposed survey, which would only capture the activities of DMBUs affiliated with licensed broadcasting undertakings, would not capture the full scope of such activities in the Canadian broadcasting system. Rather, given the dominance, in terms of revenues and subscribers, of non-Canadian DMBUs relative to those operated by licensees, the interveners were unanimous in submitting that the survey would also need to capture the activities of non-Canadian DMBUs in order to fulfil its stated purpose.
8. In considering the above-mentioned concerns as well as the other comments placed on the public record, the Commission came to the preliminary view that expanding the scope of the proposed survey was necessary in order to achieve the objectives stated in paragraph 6 of the above-mentioned notice.

Issuance of Broadcasting Notice of Consultation 2019-90-1, reopening of the public record of this proceeding and second round of comments

9. In Broadcasting Notice of Consultation 2019-90-1, the Commission reopened the record of this proceeding and called for comments on a revised survey form appended to that notice, which it proposed to administer to Canadian and non-Canadian DMBUs that provide services in Canada. In particular, the Commission requested comments on proposed changes to certain matters mentioned in paragraphs 8 and 9 of Broadcasting Notice of Consultation 2019-90, as well as on two new matters, all of which were specified in paragraphs 5 and 6 of Broadcasting Notice of Consultation 2019-90-1, which read as follows:

   5. Specifically, the Commission seeks additional comments on the following matters, which, when the Commission previously requested comments in Broadcasting Notice of Consultation 2019-90, were included among the matters mentioned in paragraphs 8 and 9 of that notice (changes are in bold):

   • whether any of the items in the survey form should be modified or deleted, or whether any new items should be added, so as to ensure that the Commission receives an accurate picture of the broadcasting activities of digital media broadcasting undertakings, both Canadian and non-Canadian, that provide services in Canada, while minimizing the administrative burden that completing the proposed survey would place on them; and
   • the appropriate level of confidentiality that should be granted to any information provided on the survey form, as well as on the appropriate balance between the public interest benefits of disclosing the information when compared to the associated potential harm.

   6. Further, the Commission seeks comments on the following new matters:

   • whether, in addition to the proposed annual survey, higher level data, such as top-line revenue and subscriber figures, should be collected on a quarterly basis, as is the Commission’s current practice in regard to the largest broadcasting distribution undertakings, in order to better capture ongoing changes in a rapidly evolving market; and
   • whether participation in the survey should be required based on a threshold approach that would exempt digital media broadcasting undertakings that provide services in Canada but do not significantly engage in broadcasting activities, and, if so, whether these thresholds should be based on an undertaking’s subscriber figures, its revenue figures, or a combination of these figures, whether other metrics should be considered in addition to or instead of revenue or subscriber figures, and what threshold values would be appropriate for this purpose.

Interventions

10. In response to Broadcasting Notices of Consultation 2019-90 and 2019-90-1, the Commission received numerous interventions and replies, including those submitted by the following parties:
    • broadcasting industry stakeholders and the associations that represent them, such as Allarco Entertainment 2008 Inc. (Allarco); AMC Networks Inc. (AMC); Blue Ant Media Inc. (Blue Ant); Bragg Communications Incorporated, carrying on business as Eastlink (Eastlink); the Canadian Association of Broadcasters (CAB); the Canadian Broadcasting Corporation (CBC); Cogeco inc. (Cogeco), on behalf of its subsidiaries Cogeco Connexion inc. and Cogeco Media Inc.; DHX Television Ltd. (DHX); the Independent Broadcast Group (IBG); Motion Picture Association-Canada (MPA-Canada); Netflix; Pelmorex Weather Networks (Television) Inc. (Pelmorex); Quebecor Media Inc. (Quebecor), on behalf of Videotron Ltd.; Rogers Communications Inc. (Rogers); Saskatchewan Telecommunications (SaskTel); Shaw Communications Inc. (Shaw), on behalf of Shaw Cablesystems Limited and Star Choice Television Network Incorporated; Société de télédiffusion du Québec (Télé-Québec); and TECHNATION;
    • creative and public advocacy groups, such as the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA); the Alliance québécoise des techniciens et techniciennes de l’image et du son, which intervened jointly with the Association des réalisateurs et réalisatrices du Québec, the Société des auteurs de radio, télévision et cinéma and the Union des Artistes (collectively referred to as AQTIS et al.); the Association québécoise de la production médiatique (AQPM); the Association québécoise de l’industrie du disque, du spectacle et de la vidéo (ADISQ); the Canadian Media Producers Association (CMPA); the Conseil provincial du secteur des communications of the Canadian Union of Public Employees (CPSC); the Directors Guild of Canada (DGC); the Forum for Research and Policy in Communications (FRPC); On Screen Manitoba; the Professional Music Publishers’ Association (PMPA); the Quebec English-language Production Council (QEPC); Unifor; and the Writers Guild of Canada (WGC);
    • the Ministère de la Culture et des Communications du Québec (MCCQ); and
    • a member of the public.

Issues

11. After examining the record for this proceeding, the Commission considers that the issues it must examine are the following:
    • whether the Commission has the jurisdiction to impose and enforce this requirement;
    • which entities should be required to participate, including:
    • whether these respondents should comprise both Canadian and non-Canadian DMBUs providing services in Canada;
    • whether responses should be filed undertaking by undertaking; and
    • whether thresholds should be used to exempt certain respondents;
    • the specifics of the data to be collected via the survey form, including:
      • the striking of an appropriate balance in order to collect information essential to the Commission without imposing an undue administrative burden on respondents; and
      • whether modifications should be made to the survey form;
    • when the data should be collected, including:
      • whether to administer the survey annually or at other intervals;
      • whether to allow for a staggered approach to filing responses; and
      • when to begin administering the survey; and
    • whether it would be appropriate to disclose data collected via the survey form.

Jurisdiction and enforcement

12. In response to Broadcasting Notices of Consultation 2019-90 and 2019-90-1, the Commission received comments on its legal authority to impose the proposed survey on Canadian and non-Canadian DMBUs as well as on the enforceability of such a requirement.

Positions of parties

13. Blue Ant, the CMPA, the CPSC, Sasktel and Shaw were of the view that the Commission has the authority to impose the survey requirement on Canadian DMBUs. Some interveners also supported the imposition of this requirement, although, in some cases, this support was conditional on the Commission imposing the same requirement on non-Canadian DMBUs.
14. Other parties indicated that, in their view, the Commission also has the authority to impose the survey requirement on non-Canadian DMBUs. Specifically, Shaw noted that the Act applies to broadcasting undertakings carried on in whole or in part within Canada, and that, according to the Commission, audiovisual services distributed over the Internet fall within the Act’s definition of “broadcasting.” Shaw was therefore of the view that the Commission has jurisdiction under the Act to regulate Canadian and non-Canadian DMBUs. The CMPA, for its part, also referenced the Act, indicating that, pursuant to section 2, the Commission has jurisdiction over “programming undertakings” that deliver “programming” to Canadians, and that DMBUs, regardless of country of origin, would qualify as such. In addition, SaskTel, when indicating its support, cited paragraph 2 of Broadcasting Notice of Consultation 2019-90, which references the Commission’s authority under paragraph 4 of the DMEO to collect data from exempt undertakings.
15. The FRPC posited, among other things, that the Commission cannot require non-Canadian DMBUs to submit information to it, as the Commission’s power to issue exemption orders is limited to exempting classes of licensees and, since the Direction to the CRTC (Ineligibility of non-Canadians) (the Direction)^{Footnote 3}prevents the Commission from licensing non-Canadian broadcasting undertakings, the DMEO does not apply to them. Further, as non-Canadian DMBUs are not licensed, the information gathering regulations set out pursuant to section 10 of the Act do not apply to them. In the FRPC’s view, the Governor in Council must change the Direction to enable the Commission to require non-Canadian broadcasting undertakings to submit information to it. MPA-Canada noted “with interest” and reserved its position on that of the FRPC. Other interveners requested additional clarification. For instance, the CPSC requested that the Commission publish an interpretation of its jurisdiction over non-Canadian DMBUs, and ADISQ requested that the Commission modify the DMEO to specify that this exemption order applies to all DMBUs, Canadian and non-Canadian, that operate in Canada.
16. All interveners representing the interests of non-Canadian parties (i.e. AMC, MPA-Canada and Netflix) and some Canadian interveners (i.e. the CAB, the CBC, Eastlink, the FRPC, Shaw and TECHNATION) submitted that imposing the survey requirement would be premature until such time as the Commission could, with clear statutory authority (which may follow from legislative amendments), issue and enforce the survey. Netflix declined to take a position on whether the Commission currently has the authority to impose this requirement. However, both MPA-Canada and Netflix stated that they shared the Commission’s concerns, as expressed in its 2019 written public submission to the BTLRP,^{Footnote 4} about its lack of jurisdiction to collect information from DMBUs in Canada. The CAB, however, disagreed with these statements and submitted that MPA-Canada and Netflix had misrepresented the Commission’s concerns, which did not regard limits on its authority but rather on its enforcement powers when faced with non-Canadian entities that opt not to cooperate.
17. In addition to commenting on the Commission’s authority to impose the survey requirement, some interveners commented on the Commission’s authority to enforce it. The CBC, for example, noted that the Commission’s authority to enforce data collection from all DMBUs providing services in Canada has not been tested.
18. Other interveners submitted that the Commission should postpone imposing this requirement until legislation is put into place to clarify how participation by non-Canadian services would be enforced. For instance, the CBC and Shaw were in favour of postponing implementation of the survey requirement until it is made clear in the Act that the Commission can enforce it. The CAB, for its part, noted that non-Canadian DMBUs have been reluctant to provide data in the past and that their submissions during the second round of comments suggest that they do not intend to comply in the future. Given this, the CAB questioned how the Commission would ensure their compliance. The CAB was supported in this by a number of Canadian broadcasting undertakings, specifically, DHX, Pelmorex, Quebecor and Rogers.
19. Finally, the FRPC submitted that the Commission can only issue mandatory orders to licensees. Given that the Direction precludes the Commission from licensing non-Canadian DMBUs, the FRPC submitted that any such undertakings that do not voluntarily comply with the survey requirement could not be ordered to do so.

Commission’s analysis and decision

20. Section 2 of the Act broadly defines the term “broadcasting” to mean 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 does not include any such transmission of programs that is made solely for performance or display in a public place. Whether this broadcasting takes place over the Internet or a more traditional method does not affect the determination in this case of whether the Commission has jurisdiction over a particular broadcasting undertaking. The Commission has consistently held that “the mere fact that a program is delivered by means of the Internet, rather than by means of the airwaves or by a cable company, does not exclude it from the definition of ‘broadcasting’.” ^{Footnote 5} The definition of broadcasting is intended to be technologically neutral.
21. Subsection 4(2) states that the Act applies to broadcasting undertakings carried on in whole or in part within Canada. The location of the person operating the broadcasting undertaking is not determinative of whether a service is carrying on in whole or in part in Canada. Rather, it depends on the existence and extent of any nexus (i.e. a real and substantial connection) between Canada and the undertaking in question, based on non-exclusive factors.^{Footnote 6} Where the Commission determines that broadcasting is occurring within the Canadian broadcasting system, it has the authority to regulate such broadcasting and the relevant broadcasting undertakings. This authority extends to non-Canadian undertakings (including DMBUs) broadcasting within Canada.
22. Under section 5 of the Act, the Commission is required to regulate and supervise all aspects of the Canadian broadcasting system with a view to implementing the Canadian broadcasting policy set out in section 3 of the Act.
23. To do so, the Act gives the Commission specific authority, chief among which is to either:
    • license and regulate broadcasting undertakings under subsection 9(1) and section 10, or
    • exempt them from licensing or other regulatory obligations under subsection 9(4).
24. These are the only legal bases upon which broadcasting undertakings may be carried on in Canada, as section 32 of the Act makes it an offence for a person to carry on a broadcasting undertaking in Canada without either a licence or a valid exemption.
25. Although, as some interveners noted, the Direction does state that the Commission cannot issue a licence to a non-Canadian, as defined therein, it says nothing in regard to the Commission’s authority to exempt such broadcasting undertakings. Based on the foregoing, all broadcasting that takes place in Canada falls within the regulatory purview of the Commission. Where the Commission determines that broadcasting is occurring within the Canadian broadcasting system, regardless of method or location of origin, it has the authority to regulate such broadcasting and relevant broadcasting undertakings. It can determine whether to license or exempt them pursuant to the Act, subject to the Commission respecting the Direction.
26. Pursuant to subsection 9(4) of the Act, the Commission can exempt “persons who carry on broadcasting undertakings of any class” from some or all of the Act’s regulatory requirements if the Commission is satisfied that their compliance is not required to implement the broadcasting policy objectives set out in the Act. It is pursuant to this authority that the Commission issued the DMEO, defined the class of undertakings it applied to, and set out conditions of exemption. Regarding who can be exempt, the Commission has broad discretion to establish and set out any class or classes of exempt undertakings in the order. The DMEO, in paragraph 2, exempts those undertakings which provide broadcasting services, in accordance with the interpretation of “broadcasting” set out in Broadcasting Public Notice 1999-84, that are:
    • delivered and accessed over the Internet; or
    • delivered using point-to-point technology and received by way of mobile devices.
27. Subsection 9(4) is not limited to exempting only those undertakings for which the Commission has defined a class of licence under paragraph 9(1)(a) of the Act. The origin of the broadcasting undertaking is not limited in subsection 9(4). Nor does the DMEO contain a condition limiting the exemption based on the origin of the broadcasting undertakings. As such, any broadcasting undertaking, regardless of origin, that meets the conditions of the class and that is carried on in whole or in part in Canada, is permitted to do so automatically pursuant to the DMEO without other formality.
28. Regarding the terms and conditions of exemption, the Commission can adopt any terms and conditions so long as it deems them appropriate. This is in keeping with the broad discretion accorded under the Act to regulate and supervise the broadcasting industry. Indeed, paragraph 4 of the DMEO requires that the undertaking “submit such information regarding the undertaking’s activities in broadcasting in digital media, and such other information that is required by the Commission in order to monitor the development of broadcasting in digital media, at such time in such form, as requested by the Commission from time to time.” The Commission retains wide discretion in determining the scope of any request for information, the frequency of the reporting requirement and the form of the response.
29. The Commission has various means to enforce its decisions and acknowledges the views expressed regarding the challenges of doing so with respect to the survey requirement. This does not affect the Commission’s authority to implement the survey requirement.
30. In light of the above, the Commission finds that it has the authority to implement the survey requirement and expects all DMBUs operating in whole or in part in Canada to comply with the Commission’s regulatory requirements.
31. As for any proposal to modify the Direction or the DMEO, the Commission considers that modifications to the former fall outside of its control, and that modifications to either fall outside the scope of this proceeding.

Which entities should be required to participate?

Participation of DMBUs, Canadian and non-Canadian, providing services in Canada

32. Although comments on the participation of Canadian and non-Canadian DMBUs providing services in Canada were not explicitly invited when the Commission first initiated this proceeding, the interveners, following the publication of Broadcasting Notice of Consultation 2019-90, commented on this while sharing their views on two other matters. Specifically, they commented on the equitable treatment of licensed and unlicensed undertakings, and on the utility of any collected data, given the limited size and representativeness of the proposed respondents, for making policy determinations.
33. Consequently, as outlined in the background section of this regulatory policy, the Commission, when reopening the record of this proceeding, specifically requested comments on whether to expand the group of required participants to include not only DMBUs affiliated with licensed undertakings but also non-Canadian DMBUs that provide services in Canada.

Positions of parties

34. During the first round of comments, the MCCQ and creative and public advocacy groups^{Footnote 7} unanimously agreed that the scope of survey respondents should be expanded to include all DMBUs operating in Canada in order to obtain a fulsome understanding of the digital media broadcasting activities taking place in the Canadian broadcasting system. For example, the CAB expressed the view, with which several interveners^{Footnote 8} concurred, that the scope of the proposed survey was too narrow and would render any resulting data unsuitable for the Commission’s stated purposes. Specifically, since DMBUs affiliated with licensed undertakings account for only a small share of digital media revenues in Canada, the collected data, in the CAB’s view, would not accurately represent digital media broadcasting activities in the Canadian broadcasting system. Nonetheless, although various interveners, specifically, the CBC, the MCCQ and various creative and public advocacy groups,^{Footnote 9} supported expanding the scope of the survey, they did not oppose its implementation on the grounds that its scope would be limited.
35. During that same round of comments, other interveners, specifically, Blue Ant and the IBG, expressed concern that the imposition of additional requirements or regulations, including reporting requirements, on licensed undertakings would increase the regulatory burden on these services and provide their unlicensed Canadian and non-Canadian counterparts with a competitive advantage.
36. During the second round of comments, the interventions filed on behalf of Canadian broadcasting industry stakeholders and creative and public advocacy groups unanimously supported the Commission’s proposal to also require non-Canadian DMBUs providing services in Canada to participate in the proposed survey. The CAB, for example, reiterated its view that the digital media industry in Canada is dominated by non-Canadian services, which represent roughly 60% of revenues according to the Commission’s 2020 Communications Monitoring Report. Therefore, in the CAB’s view, the survey, in order to have any probative value, would need to collect data from all the major services used by Canadians, regardless of country of origin.
37. Interveners representing non-Canadian DMBUs (i.e. AMC, MPA-Canada and Netflix) did not specifically comment on the appropriateness of expanding the requirement to participate in the survey such that it would include these DMBUs. Rather, these interveners submitted that, at this time, it would be premature to administer the proposed survey to non-Canadian DMBUs.

Commission’s analysis and decision

38. In the Harnessing Change report, the Commission recognized that Canadians will increasingly rely on the Internet to discover and consume music, entertainment, news and information, highlighting the importance of understanding the shifts from traditional to digital media in Canada, and of identifying the various opportunities and risks for traditional broadcasters associated with the digital environment.
39. According to Omdia estimates included in the Commission’s 2020 Communications Monitoring Report, non-Canadian DMBUs accounted for the vast majority of the estimated $5 billion in revenues generated by Internet-based audio and audiovisual services in the 2019-2020 broadcast year. The Commission therefore considers that non-Canadian DMBUs generate such a large portion of these revenues in Canada that, as recognized by the CAB, excluding them from the proposed survey would yield an inaccurate overview of the industry and its impact on the Canadian broadcasting system.
40. The Commission notes that none of the submissions placed on the record of this proceeding, not even those submitted on behalf of non-Canadian DMBUs, challenged the claim that collecting information from non-Canadian DMBUs is essential for the survey to serve its stated purpose. Nor did any of these submissions provide evidence that the Commission could achieve its aims without expanding the requirement to participate to include non-Canadian DMBUs. The Commission is therefore of the view that the participation of non-Canadian DMBUs is essential for it to achieve the objectives stated in paragraph 6 of Broadcasting Notice of Consultation 2019-90, including, in particular, the following:
    • to obtain first-hand data on digital media in the Canadian broadcasting system in order to gain a better understanding of how licensees are adapting their activities in an increasingly digital environment, and of the overall state of the broadcasting system; and
    • to inform the industry and all stakeholders on the state of digital media broadcasting in Canada through the publication of aggregate data.
41. The data collected through the survey will inform the Commission’s understanding of the scale of broadcasting revenues being allocated to digital media platforms, which will enhance its understanding of how licensed undertakings are leveraging digital media to grow and support their businesses. Indeed, the Commission considers this information essential for it to properly monitor the impact of digital media broadcasting activities and understand how the industry is adapting to the resulting challenges.
42. In light of the above, the Commission finds it appropriate to administer the new Annual Digital Media Survey to both Canadian and non-Canadian DMBUs that provide services in Canada.
43. Commission staff will, shortly after the publication of this regulatory policy, send letters to all broadcasters known by the Commission to meet the requirements for participation in order to provide more detailed instructions.
44. Broadcasters who do not receive one of the aforementioned letters but who do meet the requirements for participation must submit their administrative information^{Footnote 10} to the Commission in order to coordinate issuance of the survey. Survey participants can do so by creating or accessing a My CRTC Account^{Footnote 11} for a given undertaking and submitting the “Digital Media Survey – Registration Form” published on the Commission’s website under “Forms and My CRTC Account”.^{Footnote 12}Commission staff will be available to provide guidance and instructions on how to do so.

Collection of data on an undertaking-by-undertaking basis

45. During the first round of comments, the Commission received interventions in regard to its proposal to collect data on an undertaking-by-undertaking basis and the manner in which it should implement the survey.
46. No substantive new information was submitted in relation to these matters when the record of this proceeding was reopened following the publication of Broadcasting Notice of Consultation 2019-90-1.

Positions of parties

47. In general, broadcasters, including Blue Ant, the CAB, the CBC, Rogers and Shaw, opposed the collection of data by undertaking, submitting that this level of reporting would increase the burden of responding and that cost allocation would be arbitrary, since broadcasters record digital expenses on a consolidated basis for all undertakings.
48. In contrast, interveners representing creative and public advocacy groups^{Footnote 13} generally supported the collection of data by undertaking. One such intervener, the FRPC, submitted that, pursuant to the Act, this level of data collection is required, since the Commission’s regulatory powers are defined in the context of undertakings. The CMPA and On Screen Manitoba added that data must be collected by undertaking for it to be meaningful, for it to enable trend analysis and, in the case of audiovisual services, for it to enable the monitoring of Canadian programming expenditures by program category.
49. The CBC, for its part, submitted that it would be difficult for broadcasters to report content-related expenses on an undertaking-by-undertaking basis, since content is shared between digital and traditional services, and revenues and expenses cannot be isolated on digital platforms at the service level. The CBC added that, in its view, the Commission should collect data segmented by ownership group and language market.
50. One intervener, the CAB, expressed concern that certain undertakings that broadcast a combination of audiovisual and alphanumeric content, such as sports and news broadcasters, would find it difficult to divide revenues between these two components.
51. Finally, industry stakeholders expressed concerns regarding the validity and accuracy of the data to be collected, since respondents would have different corporate structures, methods for tracking and reporting data, and accounting methodologies.

Commission’s analysis and decision

52. As has been noted by various interveners, the Commission’s regulatory powers under the Act are generally exercised in the context of undertakings. The Commission also considers that subscriber figures by undertaking are essential to its understanding of how the digital media broadcasting industry is evolving and how it may be affecting the traditional broadcasting industry, and these figures would not be collected if the figures for several broadcasting undertakings operated by one broadcasting company were aggregated and reported on a company-wide basis rather than on an undertaking-by-undertaking basis. Consequently, the Commission considers that this data must be collected on an undertaking-by-undertaking basis.
53. As for concerns relating to differences in corporate structure or accounting methods, the Commission notes that these variances already exist between traditional broadcasting undertakings and do not prevent successful administration of the Commission’s Annual Broadcasting survey. The Commission is therefore of the view that these variances in corporate structure and accounting methodology will not impede the administration of this survey. Further, the Commission, rather than imposing specific standards with respect to industry accounting practices, has generally accepted reports prepared using a variety of accounting methodologies, provided that methods are consistently applied and well-documented, and it sees no reason to deviate from that approach when considering DMBUs.
54. With respect to undertakings that broadcast a combination of alphanumeric and audiovisual content, the Commission considers that it is necessary for undertakings providing audiovisual content, regardless of whether this content is combined with alphanumeric content, to respond to the survey. However, in the Commission’s view, it would be appropriate for these undertakings to allocate a portion of the revenues derived from alphanumeric content and from audiovisual content to separate business lines. In accordance with its current practice, the Commission will not provide direction with respect to how this allocation must be conducted but does expect all such allocations to be made in accordance with the appropriate Canadian accounting standards.
55. In light of the above, the Commission finds it appropriate to administer the proposed survey on an undertaking-by-undertaking basis and also to require undertakings that provide audiovisual content, regardless of whether such content is combined with alphanumeric content, to participate.

Exemption from survey requirement

56. Although comments on this topic were not explicitly invited when the Commission first initiated this proceeding, some interveners, when commenting on the administrative burden that the survey would impose on respondents, suggested that it would be appropriate to exempt certain undertakings from the requirement to participate in the survey. As outlined in the background section of this regulatory policy, the Commission, when reopening the record of this proceeding, specifically requested comments on whether participation in the survey should be required based on a threshold approach and, if so, which metrics should be used to establish these thresholds and which threshold values would be appropriate for this purpose.
57. When considering imposing any regulatory obligation on broadcasting undertakings, the Commission is required under paragraph 5(2)(g) of the Act to be “sensitive to the administrative burden that, as a consequence of such regulation and supervision, may be imposed on persons carrying on broadcasting undertakings.”

Positions of parties

58. During the first round of comments, Blue Ant and the IBG, with support from DHX, submitted that the Commission should consider exempting undertakings that generate less than 0.1% of the value of the digital media broadcasting market from the requirement to respond to the survey.
59. During the second round of comments, most parties agreed that a threshold approach should be implemented. They differed, however, on what metrics should be used to establish thresholds, on which values should be selected, and even on whether sufficient information was available to allow for appropriate thresholds to be determined. For example, when considering what values would be appropriate for a revenue-based threshold, the parties proposed values ranging from $25,000 per year (as proposed by Eastlink) to $25 million per year (as proposed by the CAB and Rogers). AMC and MPA-Canada, the only interveners to submit proposals for subscription-based thresholds, respectively proposed values ranging from 300,000 to 400,000 subscriptions.
60. Interveners in favour of lower thresholds, including the CMPA, the DGC and the PMPA, were of the view that as many DMBUs as possible should be required to participate in order to ensure that the survey results accurately represent the state of the digital media broadcasting industry in Canada. They added that DMBUs, by their nature, already collect very detailed data from consumers and would, accordingly, have little to no difficulty in completing the proposed survey. CMPA also noted that parties have had two years to prepare for the collection of this data.
61. Interveners in favour of higher thresholds, including AMC, the CAB, MPA-Canada and Rogers, were generally of the view that the survey would impose a significant administrative burden but provide the Commission and interested parties with little useful information for assessing trends.
62. In addition, many parties, including ADISQ and the WGC, noted that DMBU business models vary widely. Some DMBUs generate only subscription revenues or only advertising revenues, other DMBUs generate a combination of these revenues, and some DMBUs have no direct revenues. Given these different business models, the interveners submitted that the Commission would need to set thresholds using multiple metrics in order to collect data from all the DMBUs that significantly engage in broadcasting activities in Canada.

Commission’s analysis and decision

63. The Commission is sensitive to the fact that the survey requirement would impose varying administrative burdens on different DMBUs, given that they differ in size and therefore in their capacity to adapt to any such new requirement. The Commission is of the view that a threshold approach could reduce the administrative burden that would be placed on certain undertakings, particularly independent broadcasters, while still enabling the Commission to collect data from DMBUs that significantly engage in broadcasting activities in Canada. Moreover, such an approach would be in accordance with the Commission’s stated intent to collect only the minimum amount of information necessary.
64. The Commission also acknowledges that the business models of DMBUs providing services in Canada vary widely. As such, the Commission is of the view that it would not be feasible to implement a subscription-based threshold at the level of corporate entities (as opposed to the level of individual undertakings, which is the approach the Commission determined to be appropriate in paragraph 55 of this regulatory policy). Instead, the Commission considers that the survey thresholds should be set to capture a sufficient portion of the DMBU industry, Canadian and non-Canadian, so as to ensure that the collected data accurately represents the digital media industry as a whole.
65. To simplify the participation criteria and ensure that the survey captures a representative sample of the DMBUs operating in Canada, the Commission considers that it would be appropriate to adopt a threshold approach based on each company’s total participation in the Canadian broadcasting system, specifically, in terms of the revenues collected therefrom (whether those revenues are generated from traditional or digital media broadcasting activities). This approach, which would take into account the administrative burden that filing would place on smaller broadcasters, would ensure that the survey captures the activities of key non-Canadian DMBUs and consequential Canadian broadcasters.
66. In addition to considering the administrative burden that would be imposed by the survey requirement, the Commission is of the view that it is necessary to consider the disparate levels of impact that certain types of DMBUs may be having on their traditional broadcasting counterparts and the utility of the information that would be collected based on how these various thresholds are applied.
67. In the case of audio and audiovisual DMBUs, the Commission notes that these types of undertakings differ not only in scale but also in terms of their impact on traditional broadcasters. As shown in the Statistical and Financial Summaries for Broadcasting Sector 2020,^{Footnote 14} the total revenues for the commercial radio industry were equal to approximately 20% of those generated by private conventional and discretionary television services. Given that the commercial radio industry generates less revenue than the private conventional and discretionary television industry, the Commission is of the view that the threshold for audio DMBUs should be lower than that for audiovisual DMBUs.
68. In contrast, although English- and French-language DMBUs also differ in scale, the Commission is of the view that setting lower thresholds for French-language DMBUs would add little value since it would not be possible to distinguish between language-specific revenue and subscriber figures from services that operate in both French and English unless additional line items were added to the survey form. If this were done and French-language DMBUs were subjected to lower thresholds, the survey would capture the activities of smaller Canadian French-language companies. However, in the Commission’s view, these DMBUs are unlikely to significantly engage in digital media broadcasting, and the addition of line items would render the survey more administratively burdensome for all respondents.
69. In light of the above, the Commission finds it appropriate to adopt a threshold approach when applying the requirement to respond to the survey. Specifically, the Commission will adopt thresholds based on total broadcasting revenues^{Footnote 15} for the previous broadcast year^{Footnote 16} collected from the Canadian broadcasting system across traditional undertakings and/or DMBUs by a person^{Footnote 17} carrying on a DMBU operating in whole or in part in Canada. That is, although the survey data will be collected on an undertaking-by-undertaking basis, the thresholds for participation are based on total annual revenues collected from the Canadian broadcasting system from within the ownership group, if any, of the DMBU. Separate thresholds will be imposed for audio services (i.e. commercial radio undertakings, satellite services and DMBUs) and audiovisual services (i.e. conventional and discretionary television undertakings, broadcasting distribution undertakings, pay-per-view services, video-on-demand services and DMBUs). The specific thresholds that will be used to limit which respondents must participate in the survey are set out in Appendix 1 to this regulatory policy.

What data should be collected?

70. In paragraph 5 of Broadcasting Notice of Consultation 2019-90, the Commission acknowledged that the proposed survey would place an additional administrative burden on the proposed respondents (a group which, at the time, was restricted to licensed broadcasting undertakings but was later, with the publication of Broadcasting Notice of Consultation 2019-90-1, amended to comprise both Canadian and non-Canadian DMBUs).
71. As mentioned in paragraph 6 of Broadcasting Notice of Consultation 2019-90, the Commission was of the view that the collection of basic financial information was necessary for it to understand these activities and develop effective regulatory policy. Accordingly, the Commission, in both notices, requested comment on the specifics of the data that should be collected to ensure that the survey would achieve these objectives.

Balancing the benefits of data collection and the associated administrative burden

72. During the first round of comments, the Commission received numerous submissions regarding the administrative burden that the proposed survey would impose on potential respondents. In that first round of comments, the Commission also received interventions pertaining to apparent disparity in its treatment of licensed and exempt broadcasting undertakings.

Positions of parties

73. During the first round of comments, interveners representing the broadcasting industry, and in particular the CAB, Pelmorex and Shaw, submitted that the survey would impose a significant burden on respondents. The IBG and Pelmorex added that this burden would vary between undertakings but could pose a challenge, and the IBG expressed concern that independent broadcasters might find it difficult to assume the costs associated with responding. The CAB further submitted that broadcasters are unlikely to have tracked the data required to complete the survey form, since there was no previous requirement to do so.
74. In addition, ACTRA, the CAB, the QEPC, Rogers and Shaw expressed the view that implementing the proposed survey would increase a disparity in the Commission’s treatment of licensed and exempt broadcasting undertakings. The CAB added that the Commission’s publication of Broadcasting Notice of Consultation 2019-91 seemed to indicate that the Commission was moving towards imposing more requirements on licensed undertakings but not on their non-Canadian counterparts.
75. In contrast, some creative and public advocacy groups, specifically, ADISQ, the CPSC and the FRPC, opposed any arguments against implementation based on the administrative burden of responding and expressed the view that insufficient evidence had been provided to support these claims. The FRPC expressed skepticism regarding the claim that broadcasters do not track the data required to respond and another intervener, the DGC, submitted that any administrative burden associated with the survey was outweighed by the benefits of administering it, as the collected data would be essential to furthering the objectives outlined in the Act.
76. During the second round of comments, MPA-Canada, which expressed the view that the survey form was too detailed, submitted that the Commission should adopt a flexible approach that would not require the individual DMBUs to expand their data collection practices. The IBG opposed this approach, stating that allowing for DMBUs to report based on their own definitions and practices would result in the collection of data that the Commission would not be able to analyze across services or aggregate in any meaningful fashion.

Commission’s analysis and decision

77. Although paragraph 5(2)(g) of the Act requires the Commission to be sensitive to the administrative burden that this survey would impose, this responsibility must be considered alongside the policy objectives of the Act set out in subsection 3(1) as well as other aspects of subsection 5(2). This includes paragraph 5(2)(c), which stipulates that the broadcasting system should be regulated and supervised in a flexible manner that is readily adaptable to scientific and technological change.
78. The Commission is not currently equipped with sufficient information to evaluate and quantify, from a financial perspective, how the Canadian broadcasting system has been affected by digital media, and how it is adapting in light of such technological innovation, yet Canadians increasingly rely on the Internet to discover and consume music, entertainment, news and information. As such, the information to be collected through the survey form is increasingly essential to continuing to meet the policy objectives of the Act.
79. As indicated in the Harnessing Change report, the Internet and technology have influenced the manner in which broadcasting content is created, distributed, and accessed, and broadcasters have responded to those changes by adapting their business models. Canadian broadcasters, large and small, have developed and exploited relationships between their licensed traditional undertakings and their associated unlicensed digital extensions. The information sought by the Commission is essential for it to, among other things, monitor the impact of digital media broadcasting activities on traditional licensed undertakings.
80. The Commission acknowledges that industry stakeholders would likely incur some administrative and technical costs associated with responding to the survey. The CAB and Rogers indicated that broadcasters would be required to develop “a complex set of revenue and cost allocations” to respond to the survey, while the IBG added that some intervenors had “underestimated the cost associated with tracking, assembling, and inputting the required information.” To that effect, the IBG noted that some licensees would be required to make investments in “additional accounting assets, such as personnel, software, and advisory services.” The Commission considers that these interventions were general in nature and failed to quantify the burden that would be placed on broadcasters in responding to this survey.
81. As for concerns that the Commission might impose new requirements on licensees for their digital media broadcasting activities or treat licensed and exempt undertakings in a different manner, the Commission notes that this survey does not include a proposal to impact licensed undertakings in any manner. Rather, the Commission’s objective is to monitor the digital media broadcasting activities taking place in the Canadian broadcasting system so as to better understand the overall nature and impact of such broadcasting in Canada.
82. In regard to the proposed flexible approach put forward by MPA-Canada, specifically, that of allowing companies to report data in accordance with their own data collection practices and interpretation of the survey form, the Commission concurs with the IBG. This would risk yielding data that could not be effectively compared between companies and would therefore not enable the Commission to meet its stated objectives.
83. In light of the above, given the Commission’s obligations under sections 3 and 5 of the Act, and weighing its need to better understand the digital media broadcasting activities taking place in Canada against its requirement to be sensitive to the regulatory burden imposed on respondents, the Commission finds that the public interest of collecting this data outweighs the administrative burden associated with responding to the survey. Respondents must provide the data requested by the Commission, as specified in the survey form. The Commission notes that Commission staff will be available to assist broadcasters in resolving questions regarding the process of completing the survey form and the nature of the data to be provided.

Modifications to survey forms appended to Broadcasting Notices of Consultation 2019-90 and 2019-90-1

84. In both notices published as part of this proceeding, the Commission sought comments on the survey form contents in order to strike the correct balance between achieving its stated objective and minimizing the administrative burden on respondents. In both of its previous iterations, the proposed survey form, as appended to the notices, would collect high-level data pertaining to revenues, programming expenses, non-programming expenses, Canadian programming expenses and subscriptions.^{Footnote 18} It would also ascertain whether the revenues or expenses reported via the survey form were also reported elsewhere to the Commission.

Positions of parties

85. The majority of creative and public advocacy groups supported adding items to the survey form. In particular, they requested the collection of more detailed data pertaining to music programming expenses and programs of national interest. More generally, they requested data pertaining to expenditures by programming category, independent Canadian production, audience measurement, and content recommendation. They also requested that data be broken down by language and by region. Two interveners, ADISQ and the DGC, submitted that audience measurement data would be useful in assessing the discoverability of Canadian content on digital platforms.
86. In contrast, broadcasters and broadcasting associations, such as the CAB, the IBG, MPA-Canada, Rogers and Shaw, generally opposed expanding the scope of the survey and submitted that doing so would not serve Canadians but rather the interests of the groups represented by creative and public advocacy groups.
87. Shaw, in the first round of comments, indicated that expanding the scope of the survey would not support the objectives outlined by the Commission in Broadcasting Notice of Consultation 2019-90 and conflicted with that of collecting the minimum necessary amount of data. The CAB added that the proposed survey would not be able to meet the expectations of those creative and public advocacy groups.
88. In the second round of comments, the CBC, Eastlink and the IBG expressed the view that the proposed survey would serve to achieve the Commission’s stated objectives. However, Blue Ant, the CAB, MPA-Canada and Rogers submitted that it was too detailed. Of these four interveners, all but MPA-Canada proposed streamlining the form. MPA-Canada, as previously mentioned in paragraph 76 of this regulatory policy, proposed instead to modify the manner in which respondents would report their data. That proposal was addressed alongside other comments pertaining to the administrative burden that would be imposed by the survey requirement.
89. The CAB proposed limiting the collected data to that pertaining to subscription, advertising and transactional revenues; non-Canadian and Canadian programming expenses; and total subscriber and employee figures. Rogers proposed limiting it to data pertaining to total revenues, Canadian programming, non-Canadian programming, total subscribers and total employees. Both parties submitted that requesting overly granular data could dissuade some participants from completing the survey, and Rogers added that this would conflict with the Commission’s stated goal of collecting only the minimum amount of information necessary.
90. In responding to the changes proposed by the creative community, the CAB expressed the view that this community, contrary to the Commission’s stated objectives, sees the Commission’s proposal to collect data via the Annual Digital Media Survey as a first step towards establishing regulatory obligations for DMBUs instead of as a means of tracking trends. For its part, MPA-Canada expressed the view that expanding the scope of the survey would result in more stringent reporting requirements being imposed on exempt services than on licensees,^{Footnote 19} and noted that non-Canadian DMBUs do not typically record the same level of detail for their expenditures on Canadian programming expenditures as licensees are required to do. MPA-Canada also questioned not only why the Commission proposed to collect any data pertaining to the non-programming expenses of non-Canadian DMBUs but also why such expenses should be broken down as set out in the proposed survey form.
91. Aside from the above-mentioned proposed expansions and reductions to the volume and detail of data to be collected via the survey, interveners suggested that the Commission make several modifications. During the first round of comments, these suggested modifications included requests for clarification from the AQPM, the CMPA and the FRPC; requests for the provision of definitions (such as for various terms related to Canadian programming expenditures) from the AQPM and the CMPA; and the FRPC’s recommendation that “related to” be replaced with narrower terms, such as “for,” “of” or “on.” During the second round of comments, Rogers proposed that “Canadian programming expenditures” be substituted for “Canadian programming expenses” since the former is clearly defined and all participants would then submit comparable data pertaining only to qualifying expenditures.

Commission’s analysis and decisions

92. The Commission considers that the majority of the additions proposed by the interveners during the two rounds of comments would increase the administrative burden of responding to the survey without furthering the objectives that the survey was intended to achieve. The rationale put forward by creative and public advocacy groups to support these additions was limited, and, in the Commission’s view, neither substantive nor compelling enough to warrant the proposed amendments.
93. As for the proposal put forward by ADISQ and the DGC during the second round of comments that audience measurement data be collected as part of this survey, the Commission is of the view that collecting this data could align with its stated objectives and could serve as a useful metric when comparing the audiences for DMBUs and traditional broadcasting undertakings. The Commission does not currently collect audience or listenership data directly from any broadcasters. It may, however, at a future date, consider whether such data should be collected as part of the Annual Digital Media Survey^{Footnote 20}.
94. In regard to the proposals to reduce the data collected by the survey, the Commission considers that the interveners are correct in indicating that non-Canadian DMBUs might experience difficulty in isolating non-programming expenses for their Canadian operations. The Commission therefore considers it appropriate not to collect data on non-programming expenditures.
95. The Commission also acknowledges that, as MPA-Canada indicated, non-Canadian DMBUs might find it challenging to accurately report Canadian programming expenditures. The Commission is nonetheless of the view that collecting this data (which, for example, includes the payment of royalties to Canadian artists and content creators) is essential for the Commission to understand how broadcasters are adapting their activities in an increasingly digital environment, to understand how much spending non-Canadian DMBUs devote to Canadian programming and to ensure symmetry in the data collection between Canadian and non-Canadian DMBUs. However, in light of the administrative burden that this would impose on certain respondents, the Commission considers it appropriate to adopt the suggestion put forward by the CAB to only collect data broken down to the level of total Canadian programming expenditures and total non-Canadian programming expenditures.
96. As for the proposals to modify the wording of the survey form, the Commission considers that the suggestions put forward during the first round of comments were addressed when the second iteration of the survey form was appended to Broadcasting Notice of Consultation 2019-90-1. As for the proposal put forward by Rogers during the second round of comments (specifically, that “Canadian programming expenditures” be used in lieu of “Canadian programming expenses”), the Commission agrees that this change would better align this survey with the Annual Broadcasting Survey and lead to fewer instances of confusion and misinterpretation amongst respondents.
97. In light of the above, the Commission finds that a number of modifications should be made to the proposed survey form, as appended to Broadcasting Notice of Consultation 2019-90-1. Specifically, the Commission finds that the following modifications are appropriate:
    • the survey will not collect data on non-programming expenditures;
    • the survey will not collect audience or listenership data at this time, but the Commission may explore the possibility of adding this as a survey item in the future;
    • the survey will collect data on Canadian programming expenditures, but this will be limited to the collection of two figures (i.e. total spending devoted to Canadian programming expenditures and total spending devoted to non-Canadian programming expenditures); and
    • the term “Canadian programming expenditures” will replace “Canadian programming expenses” in the English-language survey form.

When should data be collected?

Frequency of data collection

98. In Broadcasting Notice of Consultation 2019-90-1, the Commission sought comment on whether, in addition to the proposed annual survey, higher level data, such as top-line revenue and subscriber figures, should be collected on a quarterly basis in order to better capture ongoing changes in a rapidly evolving market.

Positions of parties

99. Creative groups were generally in favour of more frequent data collection. In their interventions, ACTRA, ADISQ, the AQPM, AQTIS et al., the DGC, the FRPC, the PMPA and the WGC supported collecting data pertaining to revenues, expenses, Canadian programming expenditures and subscribers on a quarterly basis. In addition, ADISQ and the AQPM suggested that this data, when collected, be broken down by language.
100. Most industry stakeholders^{Footnote 21} opposed the collection of data more often than once per year. The CBC expressed the view that this would not only impose a significant administrative burden but would also yield data of limited probative value since quarterly data often fluctuates seasonally and these changes would not be indicative of any meaningful trends. The CAB and Rogers shared the latter view. MPA-Canada and Rogers added that, in their view, the imposition of quarterly data collection would not be aligned with the Commission’s stated intent of only collecting the minimum amount of information needed to support achievement of the other objectives it set out in Broadcasting Notice of Consultation 2019-90.
101. SaskTel was the only broadcasting industry stakeholder to support quarterly data collection. It suggested that timely and fulsome data collection would allow all market participants to make better business decisions in a fast-paced and continuously evolving industry.

Commission’s analysis and decision

102. Although quarterly data collection might yield some additional insight, the Commission is of the view that this is not currently required in order to achieve the objectives that it set out when proposing to administer this survey. As such, the Commission considers that quarterly data collection would impose an unnecessary administrative burden on respondents. The Commission is also of the view that quarterly data collection, when required in addition to annual data collection, would effectively result in more onerous reporting requirements being imposed on exempt undertakings than on licensed broadcasting undertakings.
103. In light of the above, the Commission finds that it is appropriate to collect data on an annual basis. However, the Commission may, if it later determines that more frequent data collection is necessary to meet its stated objectives, review this finding and reconsider the appropriateness of collecting data on a quarterly basis.

Proposal to allow for a staggered approach to filing responses

104. The CAB, which expressed concern that non-Canadian DMBUs might not participate in the proposed survey, suggested that the Commission adopt an alternative submission framework. Specifically, one that would allow for a staggered approach to filing responses.
105. Under the CAB’s proposed framework, non-Canadian services that meet the necessary threshold for participation would be required to complete the survey by 30 November. Should all such services comply, the Commission would notify the industry and Canadian services. Then, and only then, would these services be required to respond to the survey. The filing deadline for these responses would be 31 January.
106. In addition to the above-mentioned proposal to stagger responses, the Commission also received multiple submissions in which interveners expressed concerns in regard to when the survey would first be implemented.

Positions of parties

107. CAB’s proposal was supported by three broadcasters (i.e. Blue Ant, the CBC and Rogers) but strongly opposed by interveners representing creative groups and non-Canadian stakeholders, including the CMPA, MPA-Canada and the WGC.
108. The CMPA submitted that the CAB’s proposal was predicated on the latter’s assumption of non-compliance by some participants. In the CMPA’s view, such non-compliance has nothing to do with regulatory asymmetry or inequity and would not constitute a valid reason to bifurcate the rollout of the survey between Canadian and non-Canadian DMBUs.
109. MPA-Canada also opposed the use of the CAB’s proposal. First, in MPA-Canada’s view, it would be highly prejudicial to non-Canadian DMBUs if they were to submit survey responses by the proposed first deadline of 30 November and find out months later, after the proposed second deadline of 31 January had passed, that not all of their Canadian counterparts had followed suit. Second, MPA-Canada submitted that it would be inconsistent with the objectives set out in the Act for the Commission to impose a regulatory obligation on unlicensed non-Canadian DMBUs even before imposing such an obligation on licensed Canadian undertakings that operate DMBUs.
110. As for the WGC, it expressed the view that the CAB’s proposal was founded on an erroneous premise, specifically, that the Commission would not control the collected data or when survey results would be published.

Commission’s analysis and decision

111. While the parties who intervened during the first round of comments were concerned that the Commission’s approach to administering the survey only to licensed undertakings would result in disparate treatment of Canadian DMBUs vis-à-vis their non-Canadian counterparts, the Commission is of the view that adopting the staggered approach proposed by the CAB would convey an intent to treat Canadian DMBUs more favourably than their non-Canadian counterparts.
112. In addition, the Commission considers that this proposed staggered approach does not represent an adequate solution to the concerns raised by Canadian stakeholders in regard to how the publication of collected data could unfairly disadvantage them. As noted by the WGC, the Commission retains the discretion to evaluate its reporting and data publication practices (including the level of aggregation it applies to any published data) and may adapt its practices in order to strike an appropriate balance between serving the public interest by publishing collected data and addressing the confidentiality concerns raised by prospective respondents.
113. In light of the above, the Commission finds that it would not be appropriate to adopt the staggered approach proposed by the CAB.

Launch of the Annual Digital Media Survey

114. In addition to the above-mentioned proposal by the CAB to stagger responses, the Commission, during the second round of comments, received multiple submissions in which interveners expressed their views on when the survey should first be implemented. The Commission also received submissions during the first round of comments in which interveners expressed their views in regard to what would constitute an appropriate timeframe for the Commission to first implement the survey.

Positions of parties

115. During the first round of comments, broadcasting undertakings and associations generally supported a longer timeframe for survey implementation. Their suggestions varied, ranging from a minimum of six months from the publication of a decision determining the data to be reported, to one year, to delaying consideration of the survey entirely until after the BTLRP concluded its review (which occurred on 29 January 2020 with the publication of Canada’s Communications Future: Time to Act)^{Footnote 22}.
116. During the second round of comments, Allarco, Blue Ant, the CAB and MPA-Canada expressed concern in regard to when the survey would first be implemented under the Commission’s proposed framework. Specifically, they submitted that proceeding with a first implementation of the survey in fall 2021 would not provide the respondents with sufficient notice to prepare the required information.
117. The CMPA, however, expressed the view that Canadian DMBUs have had ample time, specifically, over two years, to adapt their practices and prepare to meet this requirement.

Commission’s analysis and decisions

118. With respect to the timeline for survey implementation, the Commission considers that the industry has been provided adequate notice of its intentions to begin collecting data of this nature, as these were addressed in the Harnessing Change report and the Commission’s 2019-2020 Departmental Plan.
119. The Commission notes that Broadcasting Notice of Consultation 2019-90 was published on 28 March 2019 and that the survey form appended to that notice is not substantially different from the form appended to Broadcasting Notice of Consultation 2019-90-1, which was published on 30 June 2021. As such, the Commission considers that the affected parties have received sufficient notice to prepare for collection of the specific data that will be requested.
120. The Commission acknowledges that affected parties will require some preparation time in order to submit their responses to the first survey, which, as the Commission indicated in Broadcasting Notice of Consultation 2019-90-1, would collect data from the 2020-2021 broadcast year^{Footnote 23}. However, the Commission is of the view that it is not necessary to postpone implementation of the survey such that, for example, the first survey would collect data from the 2021-2022 broadcast year. Rather, the Commission considers that it would be appropriate to extend the filing deadline for respondents in order to provide them with adequate time to submit their data.
121. The Commission also acknowledges that some DMBUs may not track data based on the Canadian broadcast year. As such, and in accordance with its current practice of accommodating requests for alternative reporting periods when administering the Annual Telecommunications Survey, the Commission considers that it would be appropriate to permit DMBUs to file data based on the closest quarter of their respective reporting years. For example, when filing a response for the 2020-2021 broadcast year (i.e. the one-year period encompassing September 2020 through August 2021), a DMBU with a reporting year aligned with the calendar year would instead file results from the period encompassing the fourth quarter of its previous reporting year (i.e. October through December 2020) and the first three quarters of its current reporting year (i.e. January through September 2021).
122. In light of the above, the Commission finds that it is appropriate to administer the Annual Digital Media Survey in order to, on its first implementation, collect data on the digital media broadcasting activities that took place in Canada during the 2020-2021 broadcast year. The Commission also finds that is it appropriate to extend the filing deadline, for the first survey only, to 30 June 2022. Subsequent surveys will be conducted concurrently with (but separately from) the Annual Broadcasting Survey, and respondents will be required to file their responses by 30 November each year.

Would disclosure of the collected data be appropriate?

123. In Broadcasting Notices of Consultation 2019-90 and 2019-90-1, the Commission sought comment on its proposal to publish, on an aggregate basis, collected data on digital media broadcasting activities in Canada. The Commission also stated, in both notices, that it recognized that certain broadcasters might be reticent or unwilling to share this commercially sensitive information, particularly if the data were to be published, even in aggregate form.
124. The Commission originally sought comment on the level of confidentiality that should be granted to any information provided in response to the survey form and on the public interest benefits of disclosing the collected information when compared to the associated potential harm. Subsequently, in reopening the record of this proceeding, the Commission also sought comment on the appropriate balance between such benefits and harms.
125. The Commission received numerous interventions in which parties commented on the level of aggregation that would be appropriate to achieve the Commission’s stated purpose, on the level of confidentiality that it should accord to survey responses and on the balance that should be struck between the public interest benefits of disclosing collected information when compared to the associated potential harm of its disclosure.

Positions of parties

Comments received in response to Broadcasting Notice of Consultation 2019-90

126. During the first round of comments, when the Commission was contemplating administering the survey only to licensed undertakings, broadcasters and broadcasting associations, such as Blue Ant, the CAB, the CBC, Pelmorex and Shaw, submitted that publication of any data could harm their competitive position in relation to their non-Canadian counterparts. The CAB expressed concern based on its understanding that the Commission intended to publish data by type of undertaking, as, in the CAB’s view, this level of granularity would harm respondents, for instance, by impacting purchases of digital rights or negotiations with program suppliers.
127. The MCCQ and creative and public advocacy groups^{Footnote 24} generally submitted that disclosure of collected data was in the public interest. Although the FRPC noted that broadcasters and their associations had provided little evidence to substantiate claims that disclosure would be harmful, both ADISQ and the FRPC were receptive to these arguments and supported claims of entitlement to data confidentiality.
128. For its part, the CBC submitted that the Commission’s practice of publishing the CBC’s data separately from that of the private commercial broadcasters would offer other undertakings unprecedented insight into how it conducts its digital activities and financial affairs. The CBC also proposed that any published data be aggregated by ownership group and language.

Comments received in response to Broadcasting Notice of Consultation 2019-90-1

129. During the second round of comments, the MCCQ and creative and public advocacy groups^{Footnote 25} expressed the view that the public interest considerations should outweigh the potential harm that could result from disclosure. One of these interveners, the CMPA, submitted that none of the parties opposed to the publication of detailed data had provided comprehensive evidence to support their claims that it would result in harm.
130. ACTRA and Unifor supported the publication of aggregated data but also suggested that the collected data could be disaggregated and released in full after seven years had elapsed. MPA-Canada, in its reply, objected to this proposal and submitted that the passage of time alone does not diminish the confidential and sensitive nature of proprietary information.
131. In general, broadcasters and broadcasting associations opposed the publication of data in any manner that would allow the identification of the activities of any individual respondent. The parties differed in their views on what level of aggregation would be appropriate.
132. MPA-Canada and Rogers proposed aggregating the data by country of origin, while the CAB, the CBC and Eastlink recommended that published data be aggregated only at an industry level with no regard for country of origin. The CAB added that all of the interveners that operate DMBUs supported this approach or one similar to it.
133. Several interveners^{Footnote 26} were of the view that all of the collected information should be treated as sensitive and kept confidential save for certain high-level industry information that, in their view, should be made public only in aggregated form. MPA-Canada expressed the view this would be sufficient to meet the Commission’s stated objective of informing the industry and stakeholders on the state of digital media broadcasting in Canada. MPA-Canada added that significant commercial harm could be expected if sensitive information were placed on the public record, which could have negative repercussions on investment in digital media in Canada and, consequently, limit the choices available to Canadian consumers.
134. Instead, MPA-Canada requested that the Commission exercise its authority to vary the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (the Rules)^{Footnote 27} with respect to confidentiality and designate the information filed as confidential in a final and conclusive decision. In putting forward this suggestion, MPA-Canada referred to paragraph 7 of Broadcasting Notice of Consultation 2019-90. In that paragraph, the Commission mentions the approach it took to confidentiality in the proceeding initiated by Broadcasting Notice of Consultation 2017-359, which led to the publication of the Harnessing Change report, and states that it anticipated concerns arising from the commercially sensitive nature of the information it was requesting and afforded it confidentiality. Alternatively, MPA-Canada submitted that parties should have the right under subsection 34(2) of the Rules to confirm their designation of information as confidential.
135. Multiple interveners expressed concerns pertaining to both publication and participation. The CBC strongly opposed the disclosure of individual data sets and expressed the view that its proposed approach (wherein published data would be aggregated at an industry level, which would afford a significant degree of confidentiality to the respondents) would encourage all DMBUs to participate. Unifor, for its part, submitted that the Commission should not publish any Canadian survey data unless the non-Canadian DMBUs also participated. The FRPC, Shaw and Télé-Québec expressed concern that the publication of data from a survey in which non-Canadian DMBUs might not participate would risk undermining the competitive position of DMBUs operated by licensees vis-à-vis those operated by non-Canadian entities. Similarly, Rogers, during the reply period, submitted that the creative groups, in calling for the disclosure of commercially sensitive information in the name of transparency, had fundamentally misunderstood both the point of this proceeding and the approach required to ensure the participation of non-Canadian DMBUs.
136. The MCCQ and three of the creative and public advocacy groups (i.e. the AQPM, the CMPA and the WGC) noted that, pursuant to Broadcasting and Telecom Information Bulletin 2010-961, the onus is on the respondent to demonstrate that the disclosure of information would result in direct harm and also that this harm would outweigh the public interest of such disclosure. As such, they submitted that the collected information should be disclosed in a disaggregated manner.
137. The CAB disagreed with the above interpretation of Broadcasting and Telecom Information Bulletin 2010-961. The CAB submitted that the rules set out therein pertain only to confidentiality in the context of broadcasting proceedings such as licensing hearings and policy reviews. In the CAB’s view, these rules would not apply to the proposed survey. The CAB added that if the rules set out in Broadcasting and Telecom Information Bulletin 2010-961 were to be applied, they would also allow the proposed survey respondents to refuse to publicly disclose information, which would result in the Commission not placing such information on the public record.

Commission’s analysis and decision

138. The Commission is of the view that publishing collected data by undertaking or by ownership group could influence the competitive positions of the survey respondents by providing insight into the value of specific digital rights. The Commission notes that this matter was of particular concern during the first round of comments when the survey requirement would have applied only to licensed undertakings and similar data would not have been collected from their non-Canadian counterparts. Including data from all DMBUs that significantly engage in digital media broadcasting activities in Canada and aggregating information at a higher level could help to mitigate these risks since no details about the performance or market power of any individual respondent would be disclosed. Similarly, the Commission is of the view that it would not be appropriate to segment data by language market, as was proposed by the CBC during the first round of comments, since the number of DMBUs operating in these respective markets is limited, and publishing data at this level of aggregation would jeopardize the confidentiality of the submitted data.
139. The Commission also considers that publishing disaggregated information after a period of seven years, as proposed by ACTRA and Unifor, could both jeopardize the participation of non-Canadian DMBUs and result in material financial harm to respondents.
140. In regard to the proposal by MPA-Canada and Rogers to publish data aggregated by country of origin, the Commission considers that such publication would not unfairly disadvantage Canadian or non-Canadian DMBUs. However, given the current number of non-Canadian audio DMBUs providing services in Canada, the Commission considers that this level of aggregation could preclude publishing data by industry segment (i.e. audio and audiovisual). In the Commission’s view, publication of data aggregated by industry segment would be of greater interest to the public and better meet the Commission’s stated objective of informing stakeholders of the state of digital media broadcasting in Canada while still mitigating the risk to respondents.
141. In regard to the CBC’s concerns regarding the Commission’s practice of publishing its data separately from that of private commercial broadcasters, the Commission is of the view that it is in the best interest of Canadians that the CBC, as Canada’s public broadcaster, disclose as much financial information as possible to ensure that Canadians are informed of the CBC’s programming strategy, how it plans to meet their needs, and how it is fulfilling its mandate, as set out in the Act. That being noted, this matter has been raised separately as part of the CBC’s ongoing licence renewal proceeding^{Footnote 28}, and the Commission will address the appropriateness of publishing the CBC’s data as part of that proceeding.
142. As for the data provided by private commercial DMBUs, the Commission considers that, although publication of the survey data would serve to inform stakeholders and the public of the impact of DMBUs on traditional broadcasting undertakings, it does not currently have sufficient information to adequately weigh the benefit to the public interest of publishing the survey data against the potential risk to respondents. The Commission is therefore of the view that it would be appropriate to proceed with the collection of data from respondents but to determine at a later date what data should be published, if any, and at what level of aggregation, since the Commission would be better able to strike an appropriate balance between risk and benefit after reviewing the collected data.
143. Further, the Commission considers that the DMBU-level data that would be provided in response to the survey is commercially sensitive, is consistently treated in a confidential manner by the parties, and could reasonably be expected to prejudice the competitive positions of the respondents if disclosed. Given the high commercial sensitivity of the data to be collected, and that the Commission’s general practice when administering the Annual Broadcasting Survey, pursuant to Broadcasting and Telecom Information Bulletin 2010-961, is to grant confidentiality to most of the information filed by respondents to that survey, the Commission is of the view that it would be appropriate to take a similar approach to the responses filed by respondents to the Annual Digital Media Survey. More specifically, the Commission considers that it would be appropriate to pre-emptively designate as confidential all DMBU-level data that would be collected via the Annual Digital Media Survey.
144. However, since the Commission is in agreement with the CAB that Broadcasting and Telecom Information Bulletin 2010-961 does not, in its current form, apply to the Annual Digital Media Survey, the Commission is of the view that it would instead be appropriate, as proposed by MPA-Canada, to vary the Rules with respect to confidentiality in these circumstances.
145. In light of the above, and in accordance with section 7 of the Rules, the Commission finds it appropriate to vary the Rules and grant full confidentiality, in advance of issuing the survey, against any disclosure of individual DMBU-level data collected as part of the survey discussed in this regulatory policy.
146. The Commission retains the discretion to re-evaluate its reporting and data publication practices, such as the level of aggregation that it applies to the data it publishes, and may adapt those practices while weighing the public interest and the confidentiality concerns of undertakings.

Conclusion

147. In light of all of the above, the Commission requires that digital media broadcasting undertakings operating in whole or in part in Canada, excepting those that do not meet the thresholds set out in Appendix 1 to this regulatory policy, file responses to the Annual Digital Media Survey, which the Commission will administer on an annual basis beginning with the collection of data from the broadcast year ending on 31 August 2021.
148. The survey template form for undertakings providing audio services is set out in Appendix 2 to this regulatory policy while that for undertakings providing audiovisual services is set out in Appendix 3 to this regulatory policy. With the exception of survey responses for the 2020-2021 broadcast year, which must be filed by 30 June 2022, survey responses are to be filed by 30 November each year.

Secretary General

Related documents

• Reconsideration of the decision relating to the addition of QVC to the List of non-Canadian programming services and stations authorized for distribution, Broadcasting Decision CRTC 2020-191, 15 June 2020
• Notice of hearing, Broadcasting Notice of Consultation CRTC 2019-379, 25 November 2019
• Call for comments on the Commission’s policy on Canadian programming expenditures, Broadcasting Notice of Consultation CRTC 2019-91, 28 March 2019
• Call for comments on a new, annual digital media survey, Broadcasting Notice of Consultation CRTC 2019-90, 28 March 2019, as amended by Broadcasting Notice of Consultation CRTC 2019-90-1, 30 June 2021
• Call for comments on the Governor in Council’s request for a report on future programming distribution models, Broadcasting Notice of Consultation CRTC 2017-359, 12 October 2017
• Addition of QVC to the List of non-Canadian programming services and stations authorized for distribution, Broadcasting Decision CRTC 2016-122, 4 April 2016
• Amendments to the Exemption order for new media broadcasting undertakings (now known as the Exemption order for digital media broadcasting undertakings), Broadcasting Order CRTC 2012-409, 26 July 2012
• Procedures for filing confidential information and requesting its disclosure in Commission proceedings, Broadcasting and Telecom Information Bulletin CRTC 2010-961, 23 December 2010
• Reporting requirements for new media broadcasting undertakings, Broadcasting Regulatory Policy CRTC 2010-582, 13 August 2010
• Amendments to the Exemption order for new media broadcasting undertakings (Appendix A to Public Notice CRTC 1999-197); Revocation of the Exemption order for mobile television broadcasting undertakings, Broadcasting Order CRTC 2009-660, 22 October 2009
• New Media, Public Notice CRTC 1999-84, 17 May 1999

Appendix 1 to Broadcasting Regulatory Policy CRTC 2022-47

Thresholds for survey respondents

The thresholds set out below determine whether a person carrying on a digital media broadcasting undertaking must complete the annual survey announced in this regulatory policy and for which survey form templates are included as Appendices 2 and 3 to this regulatory policy. All figures are in Canadian dollars.

Audio services (commercial radio undertakings, satellite services and digital media broadcasting undertakings)

Persons^{Footnote 29} with total annual revenues (those attributable to the person or that person’s subsidiaries and/or associates, if any) exceeding $25 million collected from the Canadian broadcasting system across all services during the previous broadcast year (i.e. the broadcast year ending on 31 August of the year that precedes the broadcast year for which the survey response is being filed), whether those consist of services offered by traditional broadcasting undertakings or digital media broadcasting undertakings (DMBUs), will be required to participate in the Annual Digital Media Survey if they carry on DMBUs that operate in whole or in part in Canada or if they collect revenue from such DMBUs by offering bundled services on a subscription basis. The Commission will accommodate requests for alternative reporting periods and permit respondents to file data based on the closest quarter of their respective reporting years.

Audiovisual services (conventional and discretionary television undertakings, broadcasting distribution undertakings, pay-per-view services, video-on-demand services and digital media broadcasting undertakings)

Persons^{Footnote 30} with total annual revenues (those attributable to the person or that person’s subsidiaries and/or associates, if any) exceeding $50 million collected from the Canadian broadcasting system across all services during the previous broadcast year (i.e. the broadcast year ending on 31 August of the year that precedes the broadcast year for which the survey response is being filed), whether those consist of services offered by traditional broadcasting undertakings or digital media broadcasting undertakings (DMBUs), will be required to participate in the Annual Digital Media Survey if they carry on DMBUs that operate in whole or in part in Canada or if they collect revenue from such DMBUs by offering bundled services on a subscription basis. The Commission will accommodate requests for alternative reporting periods and permit respondents to file data based on the closest quarter of their respective reporting years.

Appendix 2 to Broadcasting Regulatory Policy CRTC 2022-47

Survey form for audio services

(Undertaking Name)

All figures are to be reported in Canadian dollars

Filed under the authority of the Broadcasting Act

Protected B when completed

Undertaking Type:

Reporting Period:

Revenues – Part A

Subscription revenues

Advertising revenues

Transactional revenues

Other revenues (specify type below)*

Total Revenues

Programming Expenditures – Part B

Payment of royalties to Canadian artists/content creators

Payment of royalties to non-Canadian artists/content creators

Total payment of royalties to artists/content creators

Number of subscriptions (as of end of reporting period) – Part C

Pay subscriptions

Number of subscriptions paying full posted price

Number of subscriptions paying a discounted rate (such as bundle or new customer rates)

Total number of pay subscriptions

Free subscriptions

Total number of free subscriptions

Total number of subscriptions

*Other sources of revenue:

Please use the space provided below to supply any comments, explanations, methodological notes, or other important information about the data you have supplied on this form.

Appendix 3 to Broadcasting Regulatory Policy CRTC 2022-47

Survey form for audiovisual services

(Undertaking Name)

All figures are to be reported in Canadian dollars

Filed under the authority of the Broadcasting Act

Protected B when completed

Undertaking Type:

Reporting Period:

Revenues – Part A

Subscription revenues

Advertising revenues

Transactional revenues

Other revenues (specify type below)*

Total Revenues

Programming Expenditures – Part B

Total Canadian programming expenditures

Total non-Canadian programming expenditures

Total programming expenditures

Number of subscriptions (as of end of reporting period) – Part C

Pay subscriptions

Number of subscriptions paying full posted price

Number of subscriptions paying a discounted rate (such as bundle or new customer rates)

Total number of pay subscriptions

Free subscriptions

Total number of free subscriptions

Total number of subscriptions

*Other sources of revenue:

Please use the space provided below to supply any comments, explanations, methodological notes, or other important information about the data you have supplied on this form.

Date modified:

2022-10-07