ARCHIVED -  Decision CRTC 88-292

Decision

Ottawa, 25 April 1988

Decision CRTC 88-292

Different Drummer Communications Inc. Mississauga, Ontario - 863028700

Burlington Broadcasting Inc. Burlington, Ontario - 862657400CJMR 1190 Radio Ltd. Mississauga, Ontario - 872232400James A. Skaratt, representing a company to be incorporated Hamilton, Ontario - 872121900

The four applicants noted above each sought either a new broadcasting licence or an amendment to an existing licence in order to provide an English-language FM radio service in the Toronto-Hamilton area on the frequency 96.3 MHz (channel 242).

The Applications

Of the four applicants, three were existing licensees whose arguments in support of their applications were based, to a significant extent, on considerations of hardship or necessity, either technical or financial. These licensees each submitted that their future viability could only be ensured by having access to the frequency 96.3 MHz. In the course of its deliberations, the Commission considered whether any one of these applicants had presented overriding reasons, based on its claim of hardship, for the Commission to grant its application.

The Commission also rigorously examined various other factors, including the programming proposals of each of the four applicants. As the frequency 96.3 MHz appears to be one of the last "high power" FM frequencies available for use in the Toronto-Hamilton area at this time, the Commission has given special attention to the programming plans and commitments of each applicant to gauge how the quality and diversity of programming available to listeners in the area would be increased. In this respect, it compared the proposed programming formats with those currently offered by stations licensed to serve the area, as well as with those of other stations whose signals are readily available in the Toronto-Hamilton market.

As well, the Commission examined the benefits that would accrue to the development and promotion of Canadian talent, and whether each applicant's commitments appeared to be realistic, achievable and supported by adequate staff and financial resources.

The Commission also examined the possible alternatives available to each of the applicants, in case its application was not approved.

In support of its application, Burlington Broadcasting Inc. claimed that changing the frequency of its licensed undertaking, CING-FM, from 107.9 MHz to 96.3 MHz, is necessary for overriding reasons of public safety. According to the applicant, CING-FM's present signal could potentially cause interference with aeronautical NAV/COM services operating in the Toronto-Hamilton area, thereby posing a threat to aviation safety.

The applicant's general position in this respect was supported by interventions from the Air Transport Association of Canada, the Canadian Air Traffic Control Association, the International Air Transport Association, the Canadian Air Line Pilots Association, and the International Civil Aviation Organization.

In its intervention, the Canadian Air Line Pilots Association informed the Commission that the air navigation systems of all airline operations in and out of Toronto's Pearson International Airport utilize a reserved frequency band extending from 108 MHz to 112 MHz. Due to the proximity of CING-FM's frequency (107.9 MHz) to the lower limit of this range, it was submitted that the potential for interference with air navigation was high and therefore presented, in their view, an unacceptable risk.

The Commission takes very seriously the concerns of the applicant and interveners on this matter. Where it is shown that the signal of a licensed broadcasting undertaking poses a demonstrated threat to aviation safety, the Commission will not hesitate to take whatever steps are appropriate to address the situation. In the present case, however, no evidence was submitted to show that CING-FM's signal, as it is currently transmitted on the 107.9 MHz frequency, results in any interference with existing NAV/COM systems in the Toronto-Hamilton area. While Transport Canada has identified a potential for interference, the federal Department of Communications has confirmed in writing that it will continue to issue a Technical Construction and Operating Certificate to CING-FM for the current licensed technical parameters provided there are no changes or modifications.

Accordingly, the Commission was unable to determine that, in the interest of aviation safety, there existed overriding technical reasons to grant the application by Burlington Broadcasting Inc.

Burlington Broadcasting Inc. also submitted that it needed the new frequency 96.3 MHz in order to serve the Toronto-Hamilton "corridor", and thereby eliminate concerns about CING-FM's future financial viability. This "corridor" would include the regions of Halton and Peel.

The Commission is not convinced that extension of CING-FM's service area eastward toward Toronto to cover the Toronto-Hamilton "corridor", an area already served by stations in Oakville, Mississauga and Brampton, would be in the best interests of listeners in the Burlington area that the licensee originally applied for and was licensed to serve. CING-FM acknowledged at the hearing that there is no technical evidence to show that its signal on 107.9 MHz is deteriorating and causing reception problems in its present coverage area. Furthermore, based on the financial information submitted with its application and at the hearing, the licensee, in the Commission's opinion, did not demonstrate that it would suffer financial hardship should it continue to operate on its existing frequency.

In its application for a joint FM licence to operate a Group III (Country) station serving Mississauga, JMR 1190 Radio Ltd. (CJMR), whose previous application for a licence to operate on 96.3 MHz was denied in Decision CRTC 86-240, argued that the City of Mississauga, as a growing community of over 400,000 residents, deserves and needs a 24-hour-a-day radio station of its own. CJMR currently operates a daytime-only AM radio station serving Mississauga, as well as AM station CHWO in Oakville. It submitted that the limitations of operating its daytime AM station restrict both the service it can offer and the revenues it may achieve. CJMR's argument concerning Mississauga's need for a 24-hour-a-day radio station received support from a number of interveners, including the Mayor of Mississauga and other civic officials.

While the Commission acknowledges the merits of the argument that a city the size of Mississauga deserves a full time radio service, it does not consider that the applicant's proposal would constitute optimum use of the frequency 96.3 MHz. The Commission notes, however, that the applicant and civic officials were of the opinion that Mississauga represents a market large enough to support a station of its own, and in this respect wishes to point out that other practical opportunities for establishing a full-time radio service for Mississauga may exist on the AM band.

In its application to establish a re-broadcaster of CFMX-FM Cobourg at Mississauga, Different Drummer Communications Inc. (Different Drummer) argued that, with its present audience reach and retail advertising base, this Classical-Fine Arts station cannot support its operation or fund the future programming objectives it hopes to implement. It submitted that "the 96.3 MHz frequency represents our very last opportunity to gain access to the threshold of that all important greater Toronto area market. Such access will provide CFMX-FM with the lifeline it requires if it is to have a future as Canada's only commercial Music-Fine Arts radio station". The Commission notes that CFMX-FM's accumulated losses to date have resulted to a large extent from the fact that its substantial program expenses have not been offset by sufficient revenue from its present market.

The one applicant who was not an existing licensee, James A. Skarratt on behalf of a company to be incorporated, proposed a new Group II (Pop and Rock-Harder) FM service serving Hamilton. As noted earlier in the Introduction to Decisions CRTC 88-292 to 88-294, it is the Commission's opinion that the Hamilton market would be unable to support such a proposed new commercial radio station at this time. Moreover, it also became apparent at the hearing that the applicant lacked firm financing and operating plans for its proposal.

The Commission's Decision

Based on the particular characteristics of the Toronto market, and taking into consideration the various factors noted above, the Commission is convinced that, of the four proposals, the Different Drummer application offers the strongest combination of benefits and will thus make the best use of the frequency 96.3 MHz. In particular, its unique classical-fine arts format will offer a significant degree of musical and spoken word diversity to the Toronto-Hamilton area. Moreover, the applicant's proposal conforms with the requirements and goals of the FM policy and the applicant itself offers a proven record of performance as a broadcaster in a classical music format, and a firm commitment to Canadian talent exposure and development.

Accordingly, the Commission approves the application by Different Drummer Communications Inc. for a licence to carry on an English-language FM radio broadcasting undertaking at Mississauga, operating on the frequency 96.3 MHz (channel 242B) with an effective radiated power of 19,100 watts, to rebroadcast the programs of CFMX-FM Cobourg, Ontario. The licence for the new rebroadcasting transmitter will expire 30 September 1990, in line with the expiry date of the CFMX-FM licence, and will be subject to the conditions of the CFMX-FM licence and to those in the licence to be issued.

The other three applications which were competing with Different Drummer for the use of the frequency 96.3 MHz, are consequently denied.

Different Drummer is 100% owned and controlled by Mr. Martin Rosenthal. In 1983, Mr. Rosenthal, on behalf of a company to be incorporated (now Different Drummer) acquired the assets of CFMX-FM Cobourg and was granted a licence to continue to operate the station in a "Classical-Fine Arts" format. CFMX-FM is the only commercial station in Canada operating in such a format. In Decision CRTC 86-930 dated 24 September 1986, the Commission renewed the licence of CFMX-FM from 1 October 1986 to 30 September 1990. In that decision, the Commission acknowledged the station's "unique contribution to musical diversity".

At the 1 February hearing, the applicant described the current coverage area of CFMX-FM as forming "a triangle with Oshawa in the west, Belleville in the east, and Peterborough in the north". With the new rebroadcasting transmitter, CFMX-FM's signal will also cover Mississauga, parts of Metropolitan Toronto, Oakville, Burlington and Hamilton.

CFMX-FM currently broadcasts various weekly program series featuring Canadian artists and orchestras which it syndicates across Canada, namely "Canadian Showcase", "Conductor's Choice", "Canadian Chamber Ensemble" and "The Kitchener-Waterloo Symphony Orchestra". According to the applicant:

We are busily engaged in promoting and exposing the works of Canadian classical artists on a local, regional and national basis, and we are continuing our pioneering efforts in the recording and syndication of Canadian classical music programs for use in some 41 radio markets across Canada to date.

In CFMX-FM's last renewal decision, the Commission recognized "the special contribution" of the station's syndication activities "to the development of Canadian talent in the classical music field".

Spoken word programming on CFMX-FM tends to emphasize news and information relating to the arts, with a regional rather than a strictly local emphasis. The station also carries public service messages and commercials for art galleries, art councils and music organizations throughout Southern Ontario.

According to the applicant, penetration of the greater Toronto market will permit CFMX-FM to broaden its exposure of Canadian classical music talent and subsidize its program syndication activities elsewhere in the country. Furthermore, as the only commercial classical music station, CFMX-FM "will serve as an outlet for the advertising and promotion of cultural organizations to reach potential audiences they can target in no other way", thereby linking "the Toronto audience, artist/performer, the cultural organization and the station ... in a fashion not possible at present."

Different Drummer proposes to establish an Advisory Group consisting of eight to ten persons who will meet periodically and advise management as to matters pertaining to the station, based on their collective knowledge of the classical music industry and the cultural activities in Toronto. This group will be similar to "Friends of CFMX" in Cobourg, which the applicant acknowledges as performing valuable services both to CFMX-FM and to the audience in its listening area. The Commission expects Different Drummer to file a report with the Commission within 30 days of the date of this decision providing details concerning the Advisory Group, including its mandate and the frequency of its meetings.

The Commission notes that this is not the first time that it has dealt with an application to establish a similar commercial classical music service in the greater Toronto market. In Decision CRTC 86-232, the Commission denied an application by Mr. Rosenthal for a licence for a new Classical-Fine Arts FM radio station in Toronto. In that decision, the Commission stated that, while there were no commercial stations licensed in Toronto which broadcast predominantly jazz or classical music, it had determined that significant quantities of jazz-oriented and classical music were readily available in Toronto from the programming schedules offered by existing public and private radio stations in the area.

The Commission notes that, at the time of Decision CRTC 86-232, the signal of CFMX-FM's existing classical music service was reasonably well received in parts of Metropolitan Toronto. Subsequent to that decision, however, the Commission licensed CKLH-FM as a new commercial FM radio station in the Hamilton area (Decision CRTC 86-434). CKLH-FM operates on the frequency 102.9 MHz which was alloted to Hamilton under the Canadian FM Broadcasting Allotment Plan. Ever since CKLH-FM went on the air in September 1986, its signal has caused severe interference to the reception of CFMX-FM in the Toronto area. The Commission notes further that over the past two years, the English-language FM radio service of the CBC has made changes to its program schedule which have resulted in some diminution in the amount of classical music available in Toronto on the national public radio service.

At the hearing, Different Drummer demonstrated that CFMX-FM would add diversity to the programming currently available in the Toronto area. It highlighted the differences between the service now offered by CFMX-FM and that offered by the CBC's CBL-FM, as well as that offered by CJRT-FM, a non-commercial FM radio station which also includes classical music programming in its schedule.

In terms of musical diversity, the applicant emphasized that CFMX-FM

... is the only commercial or, for that matter, in fact, non-commercial station anywhere in Canada, that is totally classical... CJRT-FM and CBL-FM play some classical music as part of their overall schedule, but ... [t]heir total of 126 hours per week of programming is of a mixed nature, with talk and several other musical formats integrated with their classical music components. They are not solely dedicated to serving a classical music audience, rather they must be many things to many people.

Different Drummer also submitted that, with its news and information orientation towards the arts community throughout the entire region, CFMX-FM "offers true diversity to the Toronto market by the very nature of our spoken word programming".

In comparing CFMX-FM's service specifically with that of CBL-FM, the applicant offered that its station plays more "accessible", sub-category 61 (classical) music. It also pointed out that CFMX-FM plays classical music 24 hours per day, every day of the week, including weekends, whereas CBL-FM programs "virtually none" of this music on the weekends.

In comparing CFMX-FM's service specifically with that of CJRT-FM, the applicant stated that this non-commercial special FM station "with its varied programming and heavy spoken word and educational orientation, is not, in any way, shape or form a classical music station".

According to Different Drummer, CFMX-FM will provide a further element of diversity to the greater Toronto market by offering services not offered by other stations in the market:

Beyond the programming aspects, there is the whole question of servicing the business community, whether that is expressed in terms of retail, national, corporate sponsorship or syndication.

CFMX-FM, unlike CBL-FM and CJRT-FM, is a commercial music-fine arts station and, as such, will provide an advertising vehicle that is presently not available to the greater Toronto business community ... for advertisers and corporations wanting to reach the classical music environment.

In terms of impact on the advertising revenues of existing broadcasters in the greater Toronto market, Different Drummer stated that a classical music station "attracts a very different breed of advertiser" and therefore "will have the least impact on any new entry on an existing market". CFMX-FM's presence in greater Toronto is expected to attract new advertisers. CFMX-FM draws a significant portion of its revenues from corporations that are willing to sponsor its concert music programs. It also obtains revenue from corporations which, as a public relations gesture, are willing to sponsor advertising on behalf of cultural organizations not only in Toronto and Cobourg, but throughout Southern Ontario, and the audience sought by those organizations is seen to differ from that which tunes to stations offering other types of radio formats.

While the applicant considers that its access to the large Toronto area market will attract more corporate dollars for investment in syndication and in the promotion and development of Canadian talent, it does not expect CFMX-FM's presence in greater Toronto to result in a significant drain on existing advertising revenues.

Conclusion

In light of the above, the Commission is satisfied that approval of the application by Different Drummer will result in more diversity being added to the radio services in the Toronto-Hamilton area than would have been the case had one of the other three applications competing in respect of the frequency 96.3 MHz been approved. Furthermore, the Commission is satisfied that the introduction of Canada's only dedicated commercial Classical-Fine Arts music station into this market area will add a new element to the radio services already available and will not, given its intention to attract new, specifically corporate, advertisers, impact significantly on other broadcasters or existing advertising revenues.

With access to the greater Toronto market, CFMX-FM will have an increased ability to further its efforts in the development of Canadian classical music talent and will create opportunities which have not previously existed in this country for the promotion and exposure of Canadian musicians, performers, cultural events and cultural organizations. In this respect, the Commission acknowledges the numerous interventions received in support of the Different Drummer application, many of which came from members of the arts community.

In arriving at its decision to approve the Different Drummer application, the Commission has taken particular note of the applicant's statements at the hearing that:

I would close down before reducing service or turning CFMX-FM into some other format that was less expensive and easier to accomplish.

CFMX, yesterday, today and tomorrow, and as long as we are able to stay in business will be a Classical-Fine Arts radio station.

The Commission would therefore expect the licensee to surrender its licence for CFMX-FM should it, at any time, contemplate initiating a change to CFMX-FM's format such that it would no longer be a Classical-Fine Arts station.

The Commission considers that Different Drummer's proposal to broadcast from its new transmitter with an effective radiated power of 19,100 watts represents optimum utilization of FM channel 242.

It is a condition of this licence that construction of the rebroadcasting transmitter be completed and that it be in operation within twelve months of the date of this decision or such further period as the Commission may, upon receipt of a request for extension before the expiry of the said twelve months, deem appropriate under the circumstances.

Fernand Bélisle
Secretary General