The CRTC's Simultaneous Substitution Problem by Michael Geist

Jan 28, 2014


The Canadian Radio-Television and Telecommunications has spent the past year-and-a-half trying to reinvent itself a pro-consumer regulator. On the broadcast front, the most obvious manifestation of that approach is the gradual move toward pick-and-pay channels, which seems likely to emerge as a policy option later this year. Establishing mandated pick-and-pay would  be a political and consumer winner, but there are still reasons for Canadians to vent against the regulator. The retention of simultaneous substitution policies is one of them.

I made the case for gradually eliminating the simultaneous substitution policy late last year, arguing that the policy hurts Canadian broadcasters (by ceding control over their schedules to U.S. networks) and Canadian content (which suffers from promotion). Moreover, simultaneous substitution will become less important over time as consumers shift toward on-demand availability of programs. There are still supporters of simultaneous substitution, but few come from the consumer community.  Indeed, even the CRTC is hard-pressed to identify consumer benefits in its FAQ on the policy. In fact, its Super Bowl commercial FAQ claims viewers benefit from signal substitution during the broadcast, but the Commission can't seem to identify any benefits.

Given the lack of consumer interest in, and occasional hostility toward, simultaneous substitution, the policy represents a problem for the CRTC's pro-consumer orientation. With that background in mind, last week CRTC Chair Jean-Pierre Blais wrote to Rogers to complain about the company's Twitter response to a customer complaint about simultaneous substitution. When a customer complained about the CTV substitution of the Fox feed of the NFC Championship (Go Hawks), the company noted that "it's due to the CRTC rules so no way to watch the Fox feed sorry."

After stating that he was dismayed to read the Rogers response, Blais stated:

There is an important distinction to be made between authorizing broadcasters to substitute signals and forcing them to do so. As I said at the 2013 Prime Time in Ottawa conference, the time has come for broadcasters and distributors to start speaking up on simultaneous substitution rather than simply passing blame onto the CRTC.

There are several problems with Blais' letter.  First, the Rogers response isn't inaccurate. The viewer is unable to view the Fox feed due to the Canadian broadcaster (CTV) using the simultaneous substitution regulations created by the CRTC. The broadcast distributor (Rogers) is required by licence to abide by the simultaneous substitution request. The entire simultaneous substitution system is a regulatory creation of the CRTC and attempts to distance itself from it are misleading. Second, Blais' prepared remarks at the 2013 Prime Time conference did not say that it was time for broadcasters and distributors to speak up on simultaneous substitution (perhaps remarks after the speech did). The speech contained one reference to simultaneous substitution, but there was no urging of broadcasters and distributors to speak out on the issue. [Update: the CRTC Twitter feed points out the Blais went off script to urge broadcasters and broadcast distributors to stop blaming the CRTC for simultaneous substitution].

Third, it is odd to see the CRTC Chair exhorting broadcasters and broadcast distributors to speak out in favour of simultaneous substitution. According to Blais, the Commission's "Let's Talk TV" consultation is "open to any suggestion, question or idea you want to bring forward." Is the Commission open to removing the simultaneous substitution rules?  Or is it merely looking for cover from broadcasters and broadcast distributors on a policy that is not well-liked by many consumers and which ultimately provides less choice by creating Canadian networks that mirror their U.S. counterparts during prime time? If the CRTC wants to retain the unpopular policy, it should own it, not try to pass the responsibility for public support to broadcasters and broadcast distributors.