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Closed-captioning complaints and the CRTC

On June 25, 2024 the CRTC called for comments about the “development of a regulatory policy for closed captioning provided by online streaming undertakings” (Broadcasting Notice of Consultation 2024-137). The CRTC wrote in this Notice that “[a]ddressing and responding to complaints from viewers about closed captioning is critical to ensuring quality and reliability for those who need it.”

On December 18, 2023 the CRTC sent online broadcasters a request for information that included a question about the numbers of complaints each had received about captioning “from “over the last three years” – presumably referring to the period from January 2021 to December 2023. Two broadcasters filed this information with the CRTC in confidence and the CRTC on July 9, 2024 required disclosure of the information about complaints (among other things). The CRTC’s Secretary General wrote that the “information in question is significant to these proceedings” and its disclosure “would be in the public interest”.

When the CRTC issued BNoC 2024-137 it said that it “currently accepts complaints on closed captioning and it takes action based on those complaints” (paragraph 29). It provided no information in the notice about the numbers of complaints it receives or has received about accessibility issues and closed captioning in particular. FRPC therefore submitted a procedural request to the Commission (through the Secretary General) on June 26, 2024 asking for “summary information about closed-captioning complaints” it had received since 2014.

While the Commission did not respond to this request, its staff did. On July 10, 2024 the CRTC’s Director, Social and Consumer Policy wrote FRPC in English (and also in French) to say that “there would not appear to be any additional benefit to providing the information” requested by FRPC “on the public record” because “complaints received at the CRTC should be reflected in the information submitted by the undertakings as part of their responses” to the CRTC’s requests for information”.

Leaving to one side the staff’s argument that complaints received by the CRTC are not relevant to the 2024-137 proceeding because the staff assumes these complaints are “reflected” in the numbers of complaints received by broadcasters, the CRTC’s staff letter raises two questions. Why does it describe a procedural request regarding the 2024-137 proceeding as a “letter”, and why did the CRTC’s staff rather than the CRTC itself answer a procedural request directed to the Secretary General for the attention of the Commission?

As it happens, this is not the first time requests directed to the CRTC have been answered by its staff. In fact, the Federal Court of Appeal addressed the legality of the CRTC staff letters 24 years ago, in Centre for Research-Action on Race Relations v. Canada (Canadian Radio-television and Telecommunications Commission) (2000), 266 N.R. 344 (F.C.A.) The Court held that letters from staff (or even from a CRTC Commissioner: see Communications, Energy and Paperworkers Union of Canada v. CanWest MediaWorks Inc., 2008 FCA 247). have no legal weight because, under the Canadian Radio-television and Telecommunications Commission Act, the “Commission” consists of the people appointed by Cabinet to the CRTC as Commissioners, not its staff: therefore, only the Commission (or a majority of Commissioners) has the authority to make decisions on the CRTC’s behalf. A question that the CRTC staff letter does not answer is when and why the CRTC directed its staff to answer FRPC’s procedural request.

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