Fuel TV decision illustrates need to rethink genre protection, industry insiders say

The CRTC’s decision to bar a U.S. channel from Canada has not only received criticism from two commissioners—it’s drawn attention from broadcasting industry insiders who say it’s time that the regulator reconsider the way it assesses genre protection. Earlier this month the CRTC denied a request from Rogers Communications Inc. to add American channel Fuel TV to the list of digital television services eligible for distribution in Canada. The commission sided with an objection from High Fidelity HDTV Inc., which argued that Fuel TV would compete with its own radX channel. Ken Engelhart, senior vice-president of regulatory with Rogers, said his company agrees with the principle of genre protection and that it’s important to consider programming offered by Canadian services before letting U.S. channels into the country. But Rogers felt that Fuel TV was different enough from radX for a pass, Engelhart said, adding that the commission’s decision-making process is difficult to understand. “It’s so subjective that it’s hard to know who’s right and who’s wrong,” he said. Depending on the set of measurements, it’s possible to make a competitive situation appear non-competitive. “You can game the result,” he said. Fuel TV is an English-language service that offers a range of “action sports” programming, including the lifestyle and culture of non-mainstream sports, such as surfing, skateboarding and BMX bike racing. RadX offers adventure-themed programming such as shows on BASE jumping, mountain climbing, and cliff diving. It also offers BMX bike racing and skiing. The CRTC noted in its decision that it assesses requests to bring foreign channels into Canada on whether they compete completely or partially with existing Canadian specialty or pay TV services, and that the overlap between Fuel TV and radX “is great enough to cause radX direct material harm.” Yet two commissioners dissented. Commissioner Timothy Denton called genre protection an outdated policy and renewed his call for a “rethinking” of the Broadcasting Act. Similarly, commissioner Michel Morin said that, in barring Fuel TV, the CRTC displayed “an unjustified over-cautiousness towards a new non-Canadian service that would have complemented the Canadian offering.” He wrote that the commission’s method of deciding such matters is too subjective, and recommended a more objective process called the Morin model. Engelhart said he likes the idea of using a more objective method to arrive at decisions on genre protection. Rogers believes it’s time to do away with genre protection between Canadian channels, he added. Specialty channels often switch genres, Engelhart noted, pointing out that the CBC’s Country Canada channel amended its format from programming for rural society to arts and culture programs when it rebranded as Bold. Rather than trying to step in, the CRTC should allow for such situations and consider genre swapping a sign of healthy competition in the market. Norm Bolen, president and CEO of the Canadian Media Production Association (CMPA), said genre protection may not be necessary now that the commission has adopted a new group-licensing framework that encourages broadcasters to invest in independent productions. Although the CMPA has traditionally supported genre protection mechanisms, “our position could be altered,” he said. But the CRTC must be careful to ensure that any changes to genre protection wouldn’t harm the industry, Bolen said. He called for a proceeding in which all interested parties could put forward their points of view on the matter. Gregory Taylor, post-doctoral researcher in broadcasting policy at Ryerson University, said the CRTC was stuck between a rock and a hard place with Fuel TV. On one hand, the commission already reduced genre protection for sports and news channels a few years ago in broadcasting decision 2008-100. “To me this falls under the sports category,” he said of the Fuel TV decision. But on the other hand, the CRTC is mandated to maintain a high level of Canadian programming, which means it is bound to favour a Canadian over a U.S. channel. “This is where they get into an awkward situation,” Taylor said. Still, genre protection remains necessary for the time being, Taylor said, because many channels wouldn’t survive if the market were opened up tomorrow. “The marketplace has always been more of a hothouse than a jungle,” Taylor said. “We would have to be ready to accept severe losses in the number of Canadian broadcasters." He added that it would take some time for the industry to get used to the idea of operating without genre protections. But over time the market would adjust and broadcasters offering unique programming would rise to the top, Taylor said. “I think that would have to include a large amount of Canadian content,” he said. Unique Canadian content would set broadcasters apart, paving the way for more Canadian content production. Most broadcasters are “scraping by with the minimum” Canadian content today, he said, and the Fuel TV controversy could lead to a broader discussion about the role of genre protection in the industry. He added that broadcasting is an important pillar of Canada’s digital strategy, a plan that “is long overdue” from the federal government. news@thewirereport.ca

Fuel TV decision illustrates need to rethink genre protection, industry insiders say

Broadcast | May 17, 2011

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