Douglas Barrett - Part 1: Career as Media Lawyer and CRTC regulations

I'm Douglas Barrett; I am currently president and CEO of PS production services, which is an equipment rental company to the television and film industry.  We have operations in Halifax, Toronto, and Vancouver.  Until about a year ago we also had operations in Winnipeg and Regina which, sadly, we were forced to close. I've been doing this for about 10 years. Before that, for about 30 years, I was a Bay Street lawyer where I specialized in media and entertainment law. Right now my hobby is being the CTV Chair in Broadcast Management at the Shulich School of Business at York University. So, late in life I've taken up some teaching duties.

Fraser.  How did you get into media law? Who was your first client?

Barrett.  My story is simple. Believe it or not, I took a year off after my undergrad degree to talk to people and find out what turned them on about their jobs.  I met Elwi Yost, who suggested that that I get some kind of production assistant contract with TVO. So, for the second half of that year, I had a contract with TVO, then went to the United States for a Masters degree in film television and broadcasting at what is now called the Newhouse School of Communications. Later, in law school, every extracurricular thing I did was focused on media. For summer jobs, I worked at the CRTC, and then articled at the CRTC.  So, I was fairly focused from early on trying to break into this world in some way.  As my media practice grew, I would fire my non-media clients, and just gradually stopped doing any other kind of work.

F.  The law is everything in this business, whether we like it or not. As a lawyer, you must navigate through a maze of policies and programs. How would you describe the legal and policy framework that you operate under?

B.  In Canada, the media industries are all about money and politics, Whereas, of course, in the United States, it's just about money. But in most other parts of the world, there are both political and public policy issues. So, pretty much everything you do brings hybrid considerations to bear.  In the very early days, I got involved in CRTC proceedings; license applications for co-operative national services; and the production community's trade association. Those activities taught me a lot about how pressure is brought to bear on public policy. Pretty much nothing happens in the film business in Canada that is not driven by public policy at some level.

F.  As you say pretty much every country in the world, with the exception of the US and possibly India, has some kind of governmental structure that encourages local television and film production, particularly in drama. How do we stack up?

B.  I think we've been brilliant. I'm not sure whether that's been by design or by accident. One of the fun things about this area is how the right things can result from bumpy accidents of history. I did some research recently about the CRTC, which is meant to be a completely independent regulator. It is independent; in fact, it is not allowed to talk to government. Applicants and litigants bring issues to it and it tries to dispose of the issues at a public policy level and at an individual problem level. But, overall public policy lies with the government through Parliament. So, you have a public-policy driver inside the CRTC alongside a big public policy driver inside the government. And they don’t talk to each other at all. Yet, when you look back at film and television history, it's remarkable how often the two hands have danced in a kind of symbiotic way, even though they're not officially communicating in any way. I find that interesting. 

An example of how the relationship works was the launch of CanCon in the early 80s. At the time, Canada was the leader in satellite technology, but had a real problem in bringing television to remote communities. It was a private sector co-op. The threat, of course, was that foreign satellites would bring American programming to dominate our landscape.  Our response only took about 18 months. The federal government launched an investigation on the non-CRTC side. And the CRTC held several proceedings. There was a licensing process and then the launch of the satellite and of the service coming to Canadians. All of it happened in a very short period and literally with an overlapping of parliamentary processes and the machinery of government and the CRTC, even though, to repeat, they cannot talk to each other.

F.  It's well accepted in recent years that the government has certainly been talking to the CRTC, mainly saying “Thou shalt not.”

B.  Yes, “Thou shalt not,” but mostly, “We don't agree with your decision.”

F.  But you remember simpler times when the CRTC was talking about scarce public airwaves; if you wanted to be a broadcaster, you had to follow the rules and there was no dispute. Then, as you say, the satellites went up, and things got complicated. They're even more complicated now with the Internet and I wonder what your view is on where the CRTC fits within this new technological world.

B. It is really silly to say that we can have an environment without regulation. I would suggest that the regulated parties themselves would strongly resist complete deregulation.  So, it's very simplistic to think that you either have a regulator or open skies. Having some form of rules of engagement is important. The issue, of course, is how you tune that role. The CRTC is a creature of an act of Parliament; so the question is whether the Broadcasting Act is suitable for today and for the future.

What's interesting, although it’s not formally discussed here, are the informal discussions at the Banff Festival that argue articulately both ways. And one of them is from the Chairman himself saying that it’s time for us to redraw the map and look once again at our broadcasting policy framework, with a view to rethinking the legislation. The other day, at the producer's board meeting, there was a very persuasive argument that the current Broadcasting Act is, in fact, quite flexible. Really no one actually points to anything in the current act that is entirely problematic. I'm not saying there are no issues. But a wholesale re-do of the act would be highly disruptive at this time. So this is the debate. Do we sweep everything away and start again or do we knowledge that these regulations are with us and will be for some time to come?

And this obviously goes to the other debate about whether television is in its dying phase or is a vibrant pillar that will remain a part of our world.  I am in the “Television is going to be with us for a long time” camp.