MAC CRTC Submissions

MEDIAC submission on BNOC 2009-602 Phase 2 (final) 22 Jan.

22 January 2010

Mr. Robert Morin
Secretary General
Canadian Radio-television and
Telecommunications Commission
Ottawa, Ontario
K1A 0N2

VIA FAX

Dear Secretary General

Re: Broadcasting Notice of Consultation CRTC 2009-602 - Phase 2

MEDIAC INC. is pleased to provide its comments on the second phase of CRTC's proposed rules of procedure for broadcasting and telecommunications.

1. As noted in our phase 1 comments, MEDIAC is a Canadian accessibility specialty firm providing research, analysis, standards development and marketing services in the communications, entertainment and cultural industries. Its Accessibility Lens products and services offer compliance reporting; inclusive public policy and regulatory analysis, development and reporting; and business strategy solutions.
2. Like others, MEDIAC welcomes the CRTC's decision to modernize its procedural rules. We suggest that because of the complexity of the rules - particularly the merging of the telecommunications with the broadcasting rules - the CRTC should add one more phase to this process, so as to provide interested parties to take one final look at the Commission's final proposal.
3. The first of our three specific concerns in relation to other parties' comments involves accessibility. The Bragg cable company has asked the Commission to clarify the wording of subsection 21(2)(h) concerning "any reasonable accommodation" that interveners require to participate at public hearings. Bragg says that it
   • ... anticipates that the Commission's intention in formulating subsection 21(2)(h) was to provide for reasonable accommodation of those who have disabilities that might affect their ability to fully participate in Commission proceedings, who may require an interpreter or who would not be able to attend a hearing other than by way of teleconference. However, the current wording of subsection 21(2)(h) is not limited to those situations. As a result, Bragg is concerned about potential misuse or confusion regarding that provision and submits that it may be helpful to provide clarification to the wording of subsection 21(2)(h) by listing examples of the type of accommodation that would be required.
   We agree that the Commission should provide some clarification in the notice introducing its final Rules of Procedure, but point to the fact that the Commission specifically included the word "reasonable" in this section. We do not believe the section as phrased will result in abuse of the CRTC's hearing process by the disabled, and we are somewhat concerned that a more extensive list of the examples of the type of accommodation required may lead people to consider the list of examples to be exhaustive. As a result, we do not support Bragg's suggestion.
   
   We have also noted the comments by Astral and Corus, regarding the cost of ensuring accessibility:
   
   
   • 53. In short, based on paragraph 3(1)(p) of the Broadcasting Act, we submit that a "reasonableness" test that takes into consideration resources available for the purpose should be applied to any request for the production of a document in alternative format. This means that the Commission should determine the reasonableness of the request taking into account the associated cost and the ability of the party to fulfill the request, based on the resources that are currently available in the market. It also means that the party should, where appropriate, be able to propose the production of the document in a different manner than that requested, provided that it is comparable in terms of access.
   • 54. Accordingly, Astral and Corus recommend that, before issuing an order to a party to produce a document in alternative format, the Commission should provide that party with an opportunity to address the reasonableness of providing the document as requested. In those cases where the production of a document in alternative format is either unfeasible or cost-prohibitive, the party will be able to file the particulars with the Commission and to offer a reasonable alternative. The Commission will make a final decision on the basis of the information filed.
   We are concerned that the Commission may lack the expertise required to assess properly arguments about the costs of generating alternative formats. We are also concerned that the disabled party who actually needs the alternative format, would under the recommendation above, actually be excluded from the debate over costs and reasonableness.
   
   We therefore urge the Commission that if it wishes to initiate a debate about the costs of providing alternative formats to the disabled in the context of a specific proceeding, it must obtain and access the relevant expertise in this area. We recommend that the CRTC ensure that the disabled party is also permitted to comment, and that the Commission also contact a third party with expertise in this area so as to elicit their views. Simply accepting one side's argument that providing alternative formats for the disabled is prohibited by cost, does not permit verification of the true costs involved or the final benefits.
4. Our second specific concern relates to policy hearings. MEDIAC's first submission asked the Commission to clarify the proceedings it holds to consider policies and regulatory frameworks. We were pleased to see that several other parties, including Telus and Rogers, also made this recommendation. Clear procedural guidelines and rules will greatly assist parties who are less familiar with the CRTC's practices than broadcasters of longstanding, and MEDIAC therefore strongly supports the introduction of specific sections in the CRTC's Rules of Procedure for policy hearings.
5. Our third and last point involves the CRTC's reliance on outside bodies for the implementation of some of its policies. With the disappearance almost ten years ago of the Canadian Cable Television Association, Canadians and the CRTC lost access to a valuable non-governmental body able to provide the Commission with research and information about the broadcasting industry. It is now rumoured that the Canadian Association of Broadcasters, having lost half of its staff in the last year, may also be radically restructured.
6. If the CRTC decides to explain (in an associated Regulatory Policy) its new Rules of Procedure, MEDIAC suggests that the Commission consider a brief clarification of the CRTC's intentions concerning the development of the many codes and standards it has delegated to the CAB. The CRTC first addressed the issue of industry codes in Public Notice CRTC 1988-13 ("Guidelines for Developing Industry-Administered Standards"):
   • ... industry and related groups are now encouraged to assume greater responsibility in such areas as subliminal advertising, advertising in newscasts, promotions, quizzes and lotteries. In addition, the Commission expects the parties concerned to assume greater responsibility for improvements in the broadcasting system, particularly with respect to social issues of public concern...
7. The CRTC concluded that "industry groups" and 'broadcasting sectors' would respond to its requests to develop and report on the implementation of various industry standards:
   • Having considered the comments received in response to Public Notices CRTC 1987-9 and CRTC 1987-205, and following its own deliberations on the matter, the Commission has established a revised set of guidelines to assist in the development of industry standards which would apply only in the following circumstances, namely where:
   1. the Commission requests a particular broadcasting sector to develop an industry standard and indicates that Commission acceptance should be received; or
   2. a licensee or related industry group submits a standard and requests the Commission's acceptance.
      
      Accordingly, having concluded its process of consultation with respect to the Guidelines for Developing Industry Standards, the Commission hereby issues the following revised guidelines:
      1. in developing the proposed standard, the industry should address the concerns which the Commission would indicate had led it to request that a standard be developed, and state the purpose or purposes of the standard. Such purpose might be to sensitize or educate members of the industry and the public, to serve as a guide in any pre-clearance process, to improve programming content, to deal with social issues or respond to complaints;
      2. the industry should define the type of standard to be developed, specify to whom the standard will apply, and establish the means and criteria for achieving the standard;
      3. the industry should describe in some detail the extent of the public participation in establishing the standard and making significant amendments, how the standard will be administered, what sanctions will apply and what corrective action will be taken in the event of non-compliance, and any appeal process associated with it;
      4. the Commission will wish to be satisfied that the industry standard and any amendments to it have been developed pursuant to a fair consultative process. Moreover, where the Commission has so indicated, it will wish to be satisfied that members of the public are involved in deciding whether the standard has been met;
      5. the industry standard and any subsequent amendments to it should be submitted to the Commission for acceptance;
      6. a report dealing with the progress of the licensees in applying the industry standard, including the disposition of any complaints, should be submitted to the Commission on an annual basis.
8. Given the changes in our broadcasting industry over the past decade, marked by fewer but much larger broadcasting groups, as well as and the loss of major broadcasting industry associations, MEDIAC recommends that the Commission revisit this policy within its Rules of Procedure to explain the process it will use to solicit, establish measure and enforce broadcasting standards.

Thank you for allowing MEDIAC INC. to provide this written reply to other parties' comments. We look forward to your determinations in this matter.

Sincerely yours,

[original signed by]

Beverley Milligan
President and CEO
MEDIAC INC.
110 Pricefield Road
Toronto, ON
M4W 1Z9
416-488-9521 [tel]