Senate Hearings on Bill C-11 – A Look at Hearing 18 (Part Two)

We are continuing our special coverage of the Bill C-11 Senate hearings. This covers the second hour of the 18th hearing.

We are continuing with the significantly large CRTC hearing. This, of course, is the 18th hearing, but we pick up on the second hour of what was said.

For those who are curious, here is the coverage of the previous hearings:

Hearing 1 – Privacy Commissioner and Global Affairs/Justice Department
Hearing 2 – Digital rights organizations and lobby groups (1)
Hearing 3 – Lobby groups (2) and platforms (1)
Hearing 4 – Lobby groups (3) and lobby groups (4)
Hearing 5 – Lobby groups (5) and lobby groups (6)
Hearing 6 – Music Canada / platforms (2) and lobby groups (7)
Hearing 7 – Scholars/researchers (1) and digital first creators (1)
Hearing 8 – Digital first creators (2) / lobby groups (8)
Hearing 9 – Digital first creator (3) / lobby group (9) / platform (3) / Lobby group (10)
Hearing 10 – Record Label / Lobby Groups (11) and Scholars/Researchers (2)
Hearing 11 – Scholars/Researchers (3) and Lobby Groups (12)
Hearing 12 – Scholars/Researchers (3) / Digital First Creators (4)
Hearing 13 – Statistician / Lobbyist (13) / Canada Media Fund / Lobby Groups (14)
Hearing 14 – CNIB / H264 / Lobbyist (15) and Lobby Groups (16)
Hearing 15 – Lobby Groups (17) / Lobby Groups (18)
Hearing 16 – Canadian Taxpayers Federation / Lobbyists (19) / Lobby Groups (20)
Hearing 17 – Indigenous organizations / Digital First Creator (5) / Lobby Group (21)

Most recently, we covered the first hour of the 18th hearing. During that hearing, the CRTC basically tried to make a case that everyone has it all wrong about Bill C-11. Unfortunately, when he went into specifics, he basically tried to split hears where there was nothing to split. There was a lot of imaginary differences between things like platforms and the content that is on them and how regulating the content of the CBC is not regulating content and how they cannot, will not, and will never regulate content – despite them doing just that rather recently.

So, we are continuing this downward spiral of this hearing with the second hour. As always, the video we are following is currently available for anyone to watch. Nothing will beat the original video or an official transcript in terms of thoroughness. Nevertheless, we are happy to provide our own summary and offer our own analysis nevertheless. Where we are picking up in this video is at the time stamp of 19:44:40. So, scrub to roughly that point and hit play if you want to follow along with what we are watching in this post. With that out of the way, let’s continue with this hearing.

Continuing to Question the CRTC

Senator Donna Dasko said that just one word on algorithms because she loves the topic. She has received thousands of letters quoting what CRTC Chair Ian Scott said on algorithms here when Scott came in June.

Scott responded that he will see if that’s followed up by thousands of messages about him trying to clear that up.

Senator Dasko chuckled and said that they will see. It has been thousands. However, her question relates to other topics. She wanted to follow up on Senator Paula Simons with regard to her comments about Section 7.7 and 34.995. She noted that the CRTC proposed an amendment, so she would like to see the CRTC send them an amendment.

Scott responded that he will accept an undertaking to provide Senators with a response to that request. He will also provide the Senators with a short document in regards to the issue of of official language minority communities and their concern with the provision as drafted and the 7 year review.

Scott also said that he would like to reiterate that it is their job to put forward legislation and their job to ultimately decide what goes in the law.

Senator Dasko notes that the commission can handle disputes between distribution networks and programming services, however, the bill does not include online undertakings. She asked a number of questions about that.

Scott responded that the mechanism mentioned is often used with disputes between distributors of the services and the services themselves.

Senator Dasko said that over at the other place, they inserted a provision for community broadcasters to deal with disinformation. This kind of touches on the content. What does Scott think about that?

Scott responded that his understanding is that the governments plans are to introduce the third piece of the trifecta legislation. The third piece relates to online harms and in that, they will be able to deal with things like age verification services and other online harmful content and illegal content. So, that is where he expect it will be addressed. He’s not aware of anything in the legislation that would go into the issue of misinformation or disinformation.

Senator Dasko commented that it came really late at night.

Senator Leo Housakos commented that then we’ll really be talking about controlling content.

Senator Scott Tannas said that he has two questions and he is following up with Senator Marty Klyne. With the modern way of Canadians consuming entertainment through international platforms, there are two things: there are humans on earth consuming Canadian music and art, and then there is this imperative of Canadians consuming Canadian music and art, making sure they eat a sufficient amount of Canadian cooking when it comes to art. How does Scott prioritize those outcomes? Is the first one, people on Earth not Canadian, irrelevant in the CRTCs mind? Where is the line for prioritization with respect to developing Canadian artists and music, the enjoyment of everybody vs Canadian cooking and mandated amount of consuming that by Canadians?

Scott responded that he takes a little big of an issue with the premise of making Canadian’s eat as opposed to making sure there are Canadian dishes. That is how he sees the CRTCs rule and that is the CRTC’s role on discoverability. Not ‘you will you watch it’, but ‘can you find it?’

Senator Tannas commented that so, how much is eaten will never be an outcome by which Scott will judge a platform.

Scott stammered, saying that it should not- he’s not entirely comfortable saying by platform. The CRTC will apply equitable rules to everyone. Senator Tannas is absolutely right- Senator Tannas said that there is a plethora of content, international and domestic, available in multiple languages from multiple cultures. That’s wonderful. What the CRTC is trying to do is, with respect to those operating in Canada, how do they contribute to those other social policy objectives? The public good of Canadian stories are told.

Senator Tannas said that and that is where the money comes in.

Scott replied that that is where the money comes in and that is where the CRTC will be developing the regulatory framework. The export side, by the way, is a very positive one. It’s a positive aspect of the fact that there are multiple platforms because good Canadian stories are going to be told and found, not just in Canada, but around the world in their view including digital creators.

Senator Tannas then went to his second question. Senators hear lots about the speed of decisions and how it needs to be entirely different than it has been in a traditional broadcasting realm where people could wait for months and that doesn’t hurt anything. As Senators all see, months is forever in a lot of these ecosystems so that we ruin it or the opportunities could be ruined over the course of months, never mind years. Has Scott given any thought? Has Scott got all the tools within this to make sure that Scott can develop what has to be a brand new process for dealing with these services and these entities.

Scott responded that yes, and it is a fair criticism. It’s usually directed more at the telecommunications side rather than the broadcasting side because it often involves detailed cost (didn’t catch that word) issues and they can go on for a very long time. What goes with the quasi-judicial model, and Senators heard him, he doesn’t know how many times he’s repeated it today, saying that what the CRTC does is identify issues, develop a public record, invite everyone to participate, and then analyze and render decisions. That takes time. They could operate differently, and, he doesn’t know, research and they aren’t using a quasi-judicial system, and it would be faster, would it be representative? Would they be hearing from all parties? Would they have that rich record? Maybe they wouldn’t. He thinks it’s a necessary evil that goes with a quasi-judicial process that relies on evidence and public principles.

That said, he continues, yes, they could do better. Again, he’ll harkin back to “Harnessing Change”, part of the deal has got to be that the CRTC says they need flexibility and new tools to regulate. They need to regulate in a more efficient manner and that will be on them. They need to use technology. They are trying to do that. In the music and radio industry, they are using a project to hopefully code music more effectively. They have industry and musician participation in doing that. They need to find better ways and do better as a regulator, and, one last quick point, not regulate what they don’t need to regulate.

Senator Tannas asked if Scott would agree that it is very clear metrics that Scott could report to Senators on that the CRTC is accomplishing? That important and necessary task of speed in areas where speed is critical to keep the ecosystem alive?

Scott responded that he would give Senators a two fold answer. He had a CEO drill a message into his head that he doesn’t think he will ever forget. That’s what gets measured gets done. He does appreciate and understand that. His caveat is, for example, he’s heard many times, and they have thought a lot about this, about proposals that say ‘the Commission must render a decision the next day or next month.’ That just doesn’t work because it doesn’t appreciate the complexity of issues, the competing parties, procedural fairness, it’s just not that easy.

Senator Tannas said that it also doesn’t meet the requirement- (Time elapsed)

Senator Housakos commented that if Scott heard from all the witnesses that they have heard from, he would be deliberatingfor a long time to find consensus. It’s been a challenge.

Scott said that they all have legitimate views and they have to hear them and adjudicate them.

Senator Housakos said that he does agree.

Senator Pamela Wallin said that she would like to go back to the start (room chuckled) because she’s-

Scott asked if he should surrender now.

Senator Wallin said that she’s seeking clarification. She quoted her statement that Scott won’t manipulate the algorithm, the CRTC will make the platforms do it. Scott’s statement said that he agrees. The Senator is right. How else will social media companies be able to enforce discoverability rules without algorithms? It’s how they do business. It’s what they are. There’s a near unlimited amount of content available in that global world we’ve been just discussing and the algorithm is the only tool they have to really meet whatever requirement Scott put forth. More cancon. More French music. More dance on the head of a pin. It’s how they function.

Scott responded that it’s not the only tool they have.

Senator Wallin asked how else they would do it.

Scott responded by suggesting promotion, advertising, helping creators produce content, any number of ways and the algorithm is simply one. He fundamentally disagrees just because-

Senator Wallin says that advertising doesn’t accomplish that.

Scott responded that it does. It’s used today. They use promotional reels. They use commercial time. They could put up billboards if any billboards are still standing. He accepts the point that Senator Wallin is saying that there are companies who’s business is very much set up in a manner where they are suggesting content. Again, he is going to go back and using algorithms to make those suggestions. What he is saying to Senator Wallin is no different than what they do today. When you go on, pick it, Crave, Netflix, whatever, it goes “who is it? Oh, it’s Senator Wallin. What is she interested in? News.” He’s not sure, it must be documentaries. It will have documentaries. Within there, it will have Canadian documentaries.

Senator Walling said that that is what she means, it’s the mechanism for how they work.

Scott replied that that is fine. They are doing that today and he’ll expect them to do that tomorrow. What about what YouTube does in Toronto by developing a studio for digital first creators to help them make Canadian content? That’s important. That will help discoverability.

Senator Wallin said that no, it helps the amount of material that’s there.

Scott replied that the amount is part of the process. If there is only one Canadian documentary to be found, it will be considerably more challenging.

Senator Wallin said that they’ve heard Scott say a lot tonight and she knows Scott is speaking as the Chair of the CRTC and Scott doesn’t speak for the government. Scott has reassured Senators on many occasions here tonight that the deliberations, the debate will be public, there will be hearings we discussed. It’s back to Senator Simons point here that the transfer of power from the Commission to the Cabinet or the ability of Cabinet to direct the CRTCs behaviour will mean that many of these things are not subject to public hearings or not subject to appeals. Cabinet will not take an appeal to Cabinet about a Cabinet decision. It doesn’t work that way.

Scott responded that, with respect Senator, no. That’s not true. The CRTC does not take direction about decisions. They never have, they never will. There is a very bright line and he has never, will never discuss a matter in front of them with a Minister or anyone else.

Senator Walling responded by saying that this bill is creating a transfer which has not existed previously.

Scott responded that it creates an addition to a policy direction power which is general in nature and does not relate to the specific decisions taken by the Commission. They are arms length and independent.

Senator Walling asked how one could appeal a decision of the CRTC that has been directed, that decision within a framework from Cabinet, so Cabinet has said that they’d like to see “this” happen, Scott has gone out and made that happen, some member of the public, a creator or consumer, has said that they don’t like that, they want to appeal that, you are now appealing a cabinet decision whether directly or indirectly, that’s how it works.

Scott responded by saying that he is not sure he understands that. What happens today is that the CRTC can render a decision- so two possible situations. The CRTC can render a decision and Cabinet can return that decision to them through an Order in Council to reconsider, and in certain circumstances, their limited in what matters. They can also issue broad policy direction. He used the example earlier of to be a Canadian broadcaster, you have to be Canadian owned and controlled. So, those are two examples.

A legal challenge, he continues, is a separate lane, if you will, and that goes to whether the CRTC has exceeded their jurisdiction. So, to the Chair’s point earlier, that will go to court. Those are the channels for appeal. That is the channel for a broad policy direction. Nowhere in there is the Commission’s adjudicative independence affected.

Senator Wallin commented that she guess it starts with who makes the rules and Scott is used to, as Scott has said, that he would prefer to have a much more arms length relationship than this bill will allow.

Scott responded that that just relates to one provision as was put to him that there is an existing policy direction power in the Broadcasting Act. It is proposed to be changed, added to in there. The question that was asked was if he would rather have that change or have the provision that exists in the Broadcasting Act. He hopes that’s an accurate reflection and his answer was he’d rather have what’s in the Broadcasting Act.

Senator Julie Miville-Dechene said that she would like to go back to algorithms because it seems to her, right now, the platforms are giving money to YouTubers. They are doing what you call in terms of programs to become better and all that. There is some grants. There is some static (something inaudible was said in the room) sharing, so some recommendation. Around the screen, there are all kinds of things right now and the needle is not moving. The static recommendation of Canadian content doesn’t seem to be doing the job in terms of increasing the number of people listening to Canadian content.

There is a great difference, she continues, of having great content that is financed by different programs, and this content being listened to. Those are two very different propositions. So, what she really doesn’t understand is that you are putting everything on an equal footing. Well, it’s not. Some static recommendations have limited impact and we all know that the algorithm because they basically offer you in your ear the particular moment a song or a video. That is much more powerful. So, it will mean if we want changes, that algorithm will have to be used.

Scott scratched his head and said that he is glad the Senator referenced music because we haven’t really talked about audio-visual and music as much. He may have to call a friend on this one in a second. The Senator talked about a number of things and he doesn’t want to confuse the issue. On platforms, when you search for something, there are two different things that can be happening. There can be an algorithm by a content provider, or content aggregator, that points you to content. That’s what we are talking about. The desirable outcome is that you will be able to find Canadian content, Canadian music.

When you tune your radio dial in your car, Scott continues, when you go to Sirius XM, or when you go to Apple music or Spotify. So, that’s the objective. That’s different from advertising which, obviously, is another aspect whether its YouTube or Google, and what you see around are a different algorithm driven by totally different economic issues. Nothing to do with the CRTC and he’s not speaking to that at all. To go to the Senators point, and she’s quite right, what happens on, perhaps, Apple Music, is very different from turning your radio dial and one is dependent on local advertising, primarily, and the other dependent on subscriptions typically. So, they got two different business models.

the question is, Scott adds, what do we do to make sure Canadian music is recorded, distributed, and found? Today, they way the CRTC does that is we invest in funds. It’s more in the artists. It goes to Music Action, it goes to other groups so the artists get support so that their music gets recorded, they get a presence, and eventually, they make some money hopefully. Typically, more on performance then on being played. That’s the model-

Senator Miville-Dechene said that’s what’s happening now.

Scott echoed that that’s what’s happening now. In the future, what the CRTC will be focused on, what he expects he should say, the Commission be focused in on the music side, are those very same objectives. How do we make sure musicians are being supported? It’ll primarily be financial. The Senator is right, the way that Spotify presents music or Apple Music is different than how a commercial radio presents, and that’s fine. What the CRTC needs to find, and it will be developed in the future, is an equitable framework that works for all of those different business models. There isn’t one answer. There won’t be one set of rules. Not from his perspective.

Senator Miville-Dechene noted Section 4.2 (2) has been the exception of the exception. It’s on the generated content. Senators have been hearing so much criticism on this one. Scott knows the first criteria which is about money. Anything that makes money could be captured. She then quotes the section in question. So, would Scott like it to be defined more clearly? Because what Senators are trying to have there is professional musicians as opposed to user generated content. Is this definition problematic? (Scott is seen thinking) The three criteria’s that are there to say what is captured by C-11 and what’s not captured. She thinks what we are trying to do here is capture professional music, but it is not evident looking to that definition because everyone who makes a little money says “I will be captured”.

(That is the million dollar question right there. It’s a big reason why so many digital first creators are rightfully upset about this bill.)

Scott responded that he certainly does not see that to be the intent and he doesn’t think that this would be the Commission would look at it. He’ll turn to his legal colleague in a second. He knows he is repeating himself, but that won’t be the objective of the regulatory framework and many of the witnesses and interveners both the other house and here have been focused on the exception. What about this little example (apart from word count, there is nothing little about that section). He understands why they do that. That’s not what the Commission’s regulatory framework is about. It will be on the platform. Why would the CRTC focus on individual users YouTube video’s? (time elapsed)

(That answer basically just put us right back at square one. It restarts the whole discussion about forcing platforms to regulate as the CRTC sees fit, it restarts the debate about user generated content being indirectly regulated, it restarts asking why not make that section more clear, it, well, pretty much restarts everything. Scott was lucky time elapsed because that thought process could have continued and made matters worse for him.)

Senator Fabian Manning said that he wanted to get back to achieving prescribed outcomes without using algorithms manipulation. Scott said that if they use the promos, training ads to try to met those outcomes. He’s just wondering what happens if the ads and the promos don’t work and they don’t meet their outcomes. How are they brought under some type of regulation? Are they fined?

He adds that he thinks Scott said that they kind of have to use the promos training, they will be in adherence with requirements. So, his concern is if you use the promos and the ads, it seems that they are doing their best, but if they don’t meet the outcomes, it’s OK. So, he’s just trying to figure out the middle ground here because it’s kind of a little bit confusing.

Scott replied that he doesn’t think it’s specific to algorithms. He thinks what the Senator is describing is regulation at work. The CRTC does this today. They have conditions of license. Let’s not focus on platforms for a second. Let’s focus on existing players. Audio-visual distributors, whether it’s about Rogers of Quebecor. They have conditions of license that say that they will show X number of hours of news for instance. They have an obligation to do local news and so on. If they don’t do it, what does the CRTC do? The CRTC hold them to account. They have licenses. The CRTC has hearings.

If they are not in compliance, Scott continues, frankly, the CRTC can haul them in front of the CRTC, and the Senators might remember a situation four years ago when a certain broadcaster removed programming contrary to a specific order from the Commission. Within a week, they were at a hearing in front of him and his colleagues. Held to account.

Scott Shortliffe said that he could give a specific example. In the last couple of years as the bills were before parliament, the CRTC have heard informally from many of these services. Obviously, they don’t know what the rules will be, they aren’t having formal meetings with them, but they called the CRTC to say ‘hi, we are aware this is in the public sphere’. Obviously, they are thinking about this and, for example, they have had a company come in front of them and say that their algorithms would be really hard to change, but what if we did Canadian music festivals and publicize that?

Now, he said, he wasn’t able to say whether that would be good or bad because that was their dime and obviously, they can’t hold hearings, but that was a concrete idea of somebody saying ‘well, here’s something that will promote Canadian music, help make it discoverable, won’t require them to change their algorithm’. His response was, ‘great, come in front of a public hearing and say that officially.’ That would be a great idea, but that was an example of a concrete idea. It wasn’t coming from the CRTC. It wasn’t staff generating “thou shall do that”. It was a company saying that they are trying to think of things. Here is a possibility that works with their business model, might work with your needs.

So, he continued, that is the kind of thing that he hopes will come out of public hearings, and back to the idea of flexibility because, will that be enough? He doesn’t know. He doesn’t know what they are proposing, he doesn’t know how it would work, would it aid discoverability, but it’s a starting point for a public dialogue.

Senator Manning said that, just to go back to the Chair, let’s not just talk about (couldn’t catch that word) forms. It’s all they seem to talk about is (couldn’t catch that word) forms for the past number of weeks. He’s just wondering, TikTok and Instagram specifically, in regards to- can Scott tell the members how they could achieve the outcomes without using algorithms manipulation. Those two platforms.

Scott replied that he doesn’t know why they would be discrete. He doesn’t know why they would be different. What? You have content on YouTube. You have digital content. You have a variety of uploaded user content. They’re not concerned with that. Would three, in the future, be some obligations on TikTok? Quite possibly. They will have to determine who is within the scope of the legislation once it’s finalized and how they can best contribute to the system.

He thinks, he continues, the Senators question has to do with what happens to the individual pieces of content and the answer is nothing necessarily. The CRTC is not interested in individual TikTok uploads.

Senator Manning asked but would TikTok have a measurement to have a certain amount of Canadian content. Will the platform have (talking over talking) what would happen if they are unable to reach it?

Scott replied by saying would they ask them to report back to the CRTC to help them understand how much of that content comes from Canada? Presumably, they could give them a report or help them- he guesses we are distinguishing what might be imposed on them which is a decision to the future, but to use that simple example, what if we were to ask – and he hopes he doesn’t regret using an example – what if they were to ask them to report what they understand or could identify as content that was originated in Canada on their platform? He shrugged and said not information on individual uploads, Senator.

Senator Manning said that but then we get into the definition of Canadian content which is a different-

Scott said that which is another (talking over talking)

Senator Manning then said that who determines what’s Canadian content.

Scott replied that the Senator is right. The CRTC will do that.

Senator Manning clarified by asking who determines that. (what is Canadian content.)

Scott replied that they will have a definition as they do today for Canadian content and he will fully expect it will be required to be amended. It will need to change and that will be done through public proceedings. That’s one of the key elements, no doubt for future regulatory framework.

(This might be one of the few times I agree with Scott because the current definitions are terrible especially in the context of online content. They seriously need to change if they have a hope of being seen as even remotely relevant to today.)

Senator Simons said that she wanted to return to 4.2 (2)(a) because Scott has repeatedly told Senators that individual YouTubers and TikTokers are not captured by this. Let her re-read 4.2 (2)(a). She re-reads the section:

(2) In making regulations under subsection (1), the Commission shall consider the following matters:
(a) the extent to which a program, uploaded to an online undertaking that provides a social media service, directly or indirectly generates revenues;

This, apart from the algorithmic question, she thinks is the most contentious part in the entire bill because it is based on this sentence that Senators have heard from dozens of digital creators and platforms who have said to them that they are clearly captured by this. That if anybody who posts something to YouTube or TikTok or Instagram that even indirectly generates revenue can be regarded as a program that falls under regulation and that their great fear is that they will lose out on market share and international audience just because they will be forced to be ghettoized about a kind of a Cancon tide pool. So, explain to her Scott’s great assurance that they are not captured because that certainly seems to be a widespread interpretation as Senator Miville-Dechene has indicated of 4.2 (2)(a).

Scott replied that they have, and they will, and he can add this to his list of small documents that they could follow up with the Committee. He will have them to Senator Simons very very quickly. In a second, he’ll ask legal council to try to give Simons a legal response to how the CRTC understands the legislation. Again, it is not their legislation. What they can answer is how they interpret it. He would like to go back to the point. He understands the concern, but he’s tried to emphasize several times this evening and at other times, they are not interested in individual uploaded content. There is not purpose to regulated it. It would not be in the public interest. It would not contribute to the Canadian broadcasting system. They may well be interested in a platforms activities, not the individual uploaded content. Why would they spend all of their time trying to, and poor example, looking at individual cat videos? It makes no sense from a public policy perspective.

Senator Simons said that indeed, yet, the clear language of the Act.

Scott turned it over to Rachelle Frenette.

Frenette said that she can certainly do her best. The way that they understand that particular provision, and Simons is correct, the CRTC can prescribe regulation certain content under very specific conditions that are set out in the bill itself which includes factors such as generating revenues, whether it is available on other platforms, etc. She thinks that the way that they interpret what is set out in Bill C-11 currently is that there is always this distinction between jurisdiction on the one hand and the exercise of powers on the other. So, while the CRTC may have jurisdiction over certain matters over certain content, it may not necessarily exercise its powers and enact regulations or regulatory requirements on those subject matters. It can only do so, for example, if it’s consistent, for example, with Section 9.4 of the Act which says that the Commission will only regulate where it has a material impact on the Broadcasting Act.

Also, she continues, the Commission would only be enacting particular requirements after a public hearing in which they would hear evidence and hear submissions from parties as to whether or not it is appropriate to be exercising its powers in relation to this particular aspect. She hopes that provides Senators some clarity.

Senator Simons said that it’s nice that they are going to choose to interpret the bill in this particular way, but that’s not what the language says, and it is clearly- they have not just heard- she means people keep talking about cat video’s. We’re not talking about cat video’s. We’re talking about extremely successful (something happened off screen). No, not cat video’s. Please stop saying cat video’s. We are talking about people who are doing- who are creating real art, who are using digital technologies to create different kinds of film, different kinds of animation, different kinds of stand-up comedy, different kinds of miniature plays, and to create children’s music. There are all kinds of different people who are doing professional, cutting edge, artistic who are seriously concerned, and who have taken legal advice that advises them to be serious concerned that they will be captured by this Section. She grows wearing of dismissing an entire generation of artistic creators as people posting cat videos of their cats.

Scott responded that that is not his reference. He is just going to add, if he may, very briefly, Senator Simons do realize that today, under the Broadcasting Act, to the points his council made, there is a difference between applying jurisdiction and having an authority. The CRTC could regulate them today under the Broadcasting Act. They do not. The reason they do not is that it makes no sense to do so.

Senator Housakos said that he agrees with those comments. The problem is (there was some talking back and forth) – he agrees that even in the old Broadcasting Act part, C-11, Scott has that power to do that. So, that’s why we are all here and arguing. He’s not sure who Scott’s successor might be and his view is, so he takes Scott at face value, but he doesn’t know his successor or future CRTC will do

Scott said that he would repeat that the Chair represents the Commission. (there was some more talk over talk)

Senator Housakos said that the debate over C-11 and Scott sees here tonight, you have his colleague, Senator Miville-Dechene, believes that we need to push out Canadian content. We need to do more to overcome some of the lack of Canadian content or a certain type that she might view as more Canadian than others and need to push that out. She believes that the way to do that is through algorithms- she didn’t say that? He won’t quote her. Let him change the line of questioning.

Senator Housakos said that at the day, the problem we really have- Scott mentioned what the objective of the bill is, as Scott interpreted it, is that we make Canadians more aware of Canadian content and it’s clear throughout the course of questions and answers, one of those ways is through algorithm manipulation. Scott says that there are other mechanisms as well which is advertising strips and so on and so forth. Clearly, the most powerful tool, as Senator Manning said if we don’t achieve the first goal, is to eventually get these platforms, and that’s the big concern with this bill (a Senator asked if they were over time and Senator Housakos said that he’d like to finish his question).

Senator Housakos said that, so, Scott mentioned that individual content is not what this is all about – that you don’t think that your objective is to basically dictate individual content. When we look at those platforms, all they are about is about individual uploaded content. TikTok. YouTube. None of them actually exist without that content. Their algorithm policies are driven by commercial base, by consumer choice. So, if they want to watch certain things, that’s what they push up. It’s a business model. So, the question is, if we don’t get the end result that the CRTC or government official wants, are we going to go as far as using algorithm manipulation, forcing these platforms to decide who we push up and who we push down? From hundreds of thousands of individual content producers in this country, their concern is that if you are a comedian from British Columbia who has millions of followers, and you made this as a business as a comedian, well, maybe what they do doesn’t fall into Canadian content.

(Senator Dawson began to argue with Housakos, accusing him of bias and going over time. The exchange got quite heated.)

Scott said that he understands his point, but he doesn’t think that it’s different from today. Today, broadcasters also have a business model. They rely on advertising. It’s different. It’s a traditional model, but it’s one, and consumers have a choice. They can watch one network of another, they can watch foreign programming and never turn on a Canadian channel. It is their choice. That will be the case in a future regulatory environment. Whether the service uses different technology or not, he doesn’t expect that to be any different in the future. Consumers are the ultimate arbiters of content. They will choose what they watch and there’s nothing in the Commission’s approach to make them choose one over the other. That is the ultimate choice of consumers.

Senator Jim Quinn said that, earlier, they talked about the mechanisms of regulation (he moved away from the microphone and became inaudible). That’s a process that comes in after the regulations are enforced. What he was saying is that a better mechanism, given the interest of Canadians on this topic, may be to have a mechanism in place that allows the parliamentarians to review regulations and policy as they go to process with what’s needed. So, we have assurance that we are consistent with the Act, the policy directive, etc. That’s what he was getting act. So, wouldn’t there be an alternative much more efficient and, given the controversy here, more palatable for stakeholders?

Frenette responded by saying that, absolutely, well, their regulation are published in part one and part two- absolutely. So, there is a component to that. People are entitled and avail themselves of that ability to react to the draft regulations that they put forward.

Senator Quinn said that all he is saying is that let that process unfold so that parliamentarians who are responsible for Acts that are there and regulations that emanate that policy that they have a chance to review – not to disallow – but to ensure that the concerns that have been expressed are somehow more balanced in a more meaningful way, particularly when it affects every Canadian.

Scott responded that, if he may, one quick response- that is not something for them to determine, obviously. Governments and parliamentarians decide if that’s appropriate. He would point out earlier, he was asked a question about how long these things take. They do rely on public processes. Doing informal regulations takes a long time. A considerable amount of time. Every time you add another check and balance, they may be laudable, they may be a good objective, it will also add time.

Senator Quinn said that, right, that’s why it’s got to have boundaries. He agrees with Scott.

Scott responded that it will all take time.

Senator Rene Cormier said that he is going to ask a question about hearings. Bill C-11 does not address under 9.41, public hearings. According to a- there would be a publication on the website of the CRTC. Here’s his question: reducing the process by publishing that on the website of the CRTC, does that considerably reduce accessibility and reduce consultation? Does that reduce consultation? Does he feel that public hearings that also apply under 9.1, should there be a decent opportunity for people to express themselves in public hearings?

Frenette responded that she can give the Senator an idea of what the CRTC has as a process. As the Chair has said, the CRTC puts out several hundreds of decisions per year, and those decisions are proceeded by a process. A public process. 80% to 90% of the processes are written hearings. Why? Because that allows, just like a public hearing, that allows for a very robust public record – and that allows the Commission to make an informed decision further to that type of hearing. Every decision issued by the CRTC, to her mind, includes excessive resources at times. They do have many resources in place.

Senator Cormier said that he understands what he is trying to say to him, but not everybody is equipped in the same way to express their point of view. So, how can the CRTC make observations on a website when it is very difficult for people to say, appear in person at a public hearing?

Frenette responded that it’s the maximum number of people who can express themselves. That is what is important. It is an excellent point, they want to be able to develop public processes according to the issue that is being examined so there is flexibility, administratively speaking to hear people’s opinions and to receive their comments. It could be in writing or it could be in participating in a public hearing. Those are processes. There has to be a discretion to determine this discretionary ability to determine what we are getting at in any hearing.

Senator Housakos said that there is a couple of minutes and offered Scott to offer closing comments.

Scott said that maybe he should raise the issue of algorithms (the room laughed). He said that he’d like to say two things. The first is that they appreciate the opportunity the opportunity to come before Senators – both the invitation for the pre-study and again today. He did say at the time that they would be available to come back and he is glad that Senators invited them to do so. He would also like to say that they are public servants who are trying to be helpful to this committee. As he said a number of times. They are not the drafters. They are not trying to be the defenders of everything about the legislation. They are doing their best to give Senators an honest appraisal of how they would approach it, and again, as he emphasized in his opening remarks, they need this legislation. They have outdated tools. They have a radically changed broadcasting environment. They do need new tools and a new framework with which to oversee them and pursue the objectives which he has not seen disagreed with in either party in any house. So, he thanks them for their indulgence, their penetrating questions and listening to the answers. It’s truly appreciated and its always an honour to appear in front of Senators.

With that, the hearing adjourned.

Concluding Thoughts

So, first of all, that is a considerable amount to take in – both with the first part and this second part.

What struck me is that, this so much that was said, how little progress this debate moved. What we did get in this debate is the idea that the CRTC would, at least, consider looking at advertising and other methods of non-algorithmic interventions to carry out the Broadcasting Act. To me, it’s a strange idea because I volunteered in radio for a few years. In making the playlists, there was that strict MAPL system I had to follow. It did, indeed, get me to play stuff I might not otherwise have considered, but whenever I did play those songs, I knew those Canadian artists I played were not going to see a single cent from my airplay because they were not super famous. Of course, that wanders into an entirely different debate.

With that experience, though, I have never heard of advertising as a way of making regulatory requirements to ensure the radio service is in compliance and being considered “Canadian enough” as part of their condition of license. Yes, to be fair, Scott did say that different services would be treated due to their nature of how their business operates.

At the same time, though, and this is what a number of Senators picked up on, how does one measure something like that? It’s not as though the CRTC has low level Canadian compliance police running around making sure every billboard is accounted for and every banner is tallied. Is there a way to send copies of receipts of some sort? Maybe. However, at the end of the day, there has to be some kind of math behind it all. If YouTube holds a festival for Canadian content creators, is the CRTC going to measure head count at this festival? Does expenditures of this festival count? To what degree? If TikTok takes out billboards for their creators, how many should they take out? Is there some sort of points system? How many billboards being taken out would count as the same as YouTube’s festival? I can only see the math getting extremely messy very quickly.

Going back to the radio MAPL example, I know from personal experience that the total number of songs for a given show has to, at least, be 40% Canadian. This is very measurable. If you play 10 songs in a given time slot, then 4 of them should be Canadian in some way. A radio station manager or accountant can count all of this up and hand over play logs to show that they are, indeed, in compliance. Such a system is highly measurable.

So, the tendency in all of this is to gradually default to simply saying that a certain percentage of Canadian content needs to appear on the home page. The math, from a regulatory perspective, is going to be easier. Adding complexity to the math is only going to make it harder to measure and governmental institutes eventually have to justify their costs. So, a Conservative government could take over at a later time and say that costs cuts across the board are in order. Would a cost cut affect that ability to really handle that complex math behind the scenes for YouTube, TikTok, or Twitch? Who knows?

As a result, the worry is very much there that, eventually, everything eventually funnels into how we manipulate the algorithm. This is the, at least, somewhere in the ballpark of what Senator Housakos was trying to say before being interrupted by Dawson. What if those billboards aren’t enough for a future CRTC chair? What if a future Chair tells YouTube that the festivals are nice, but they want more?

You can see the line of reasoning gradually trickle back to something that is powerful and easy to measure: algorithm manipulation. Such manipulation can be very powerful and can make or break a creator regardless of how much people want their content. With Bill C-11, you are setting up for this kind of eventuality. Maybe manipulation of this nature doesn’t happen days or even months after such a bill receives royal assent. No one can predict the future.

Maybe Scott is being sincere that there is no way that he is going to touch user generated content or how content is even displayed. The problem is, it’s entirely possible that an aggrieved party will step forward and tell the CRTC that the music festivals or the billboards are doing little to nothing to promote Canadian content and they say that the only viable solution is to manipulate the algorithms so their videos or podcasts are shown to more Canadians. There is huge financial motivation to do so, so it would be entirely unsurprising if we wind up with a situation like that. Maybe the future CRTC would agree and say that this whole idea of considering advertising or demo reels was a mistake and decide that this is the direction to go – to promote specific kinds of content over everything else.

The problem for Bill C-11 supporters is that you can’t say that such a scenario is impossible and will never happen. They can say that it probably won’t until they are blue in the face, but they can’t convincingly say that this scenario is impossible. The reason why so many creators get so energetic about this is because now you are entering a territory where you are betting your entire career on hoping that something won’t happen in the regulatory process that kills your career. What’s more is that it is an added risk to take on that they have no control over. They are being forced to take on that added risk against their will when they would rather have no chance that such an outcome would occur.

Could your career that you spent years fostering, building, learning, and pouring in your blood, sweat, and tears be one bad decision away from being all gone over night? Maybe. Well, then maybe this bill should be fixed so that “maybe” becomes a “no”.

Drew Wilson on Twitter: @icecube85 and Facebook.

2 thoughts on “Senate Hearings on Bill C-11 – A Look at Hearing 18 (Part Two)”

  1. I do wish that the CRTC or the Government would review what 50 years of Cancon regulations have gotten us. Fifty years ago, there was much angst about the lack of Canadian shows on TV and how this threatened our culture, so the Cancon regulations were borne. Fifty years later not much has changed – Canadian shows rarely crack the top 30 in the TV ratings, CTV, Global and City still don’t care much about original content, and the usual chicken littles are still running around saying our cultural sovereignty is endangered.

    Then there’s the CBC. Over the last 50 years, the CBC did increase the amount of Cancon it airs in primetime, but it lost viewers despite spending 35-40% of its advertising and syndication revenue on sales and promotion (source – financial info filed with the CRTC). Over the same period, the CBC’s sense of self-importance has grown. Its mission statement says the CBC should “contribute to the development of a shared national consciousness and identity”. So, it wants to be The Borg.

    What does our government do with such a pitiful track record for Cancon regulations? It doubles down and decides to expand the failed regulations to streamers. Furthermore, it decides that the reason for the low ratings of most Cancon is that Canadians can’t find it. Cancon is easy to find, the problem with Cancon is that an awful lot of it is mediocre at best.

    When it comes to discoverability, the government needs to remember the old adage – you can lead a horse to water, but you can’t make it drink. In fact, if you push too hard the horse will give you a good, swift kick.

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