ARCHIVED -  Decision CRTC 95-296

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Decision

Ottawa, 7 June 1995

Decision CRTC 95-296

Riverport Satellite T.V. Limited

LaHave, Riverport and surrounding areas, Nova Scotia

Non-renewal of Licence

In Notice of Public Hearing CRTC 1995-2-1 dated 3 February 1995, the Commission called Riverport Satellite T.V. Limited (RSTV) to appear at a public hearing to be held in Halifax beginning on 4 April 1995 to show cause as to why the licence for its radiocommunication distribution undertaking serving LaHave, Riverport and surrounding areas should be renewed. Following the Halifax hearing, the Commission has decided not to renew the licence granted to RSTV for this radiocommunication distribution undertaking. Accordingly, RSTV's authority to operate this undertaking will expire on 31 August 1995.

The Commission puts RSTV on notice that, should it continue to broadcast after midnight on 31 August 1995, it will be doing so without a valid licence. The Commission draws RSTV's attention to section 32(1) of the Broadcasting Act which states:

 Every person who, not being exempt from the requirement to hold a licence, carries on a broadcasting undertaking without a licence therefor is guilty of an offence punishable on summary conviction and is liable

 (a) in the case of an individual, to a fine not exceeding twenty thousand dollars for each day that the offence continues; or

 (b) in the case of a corporation, to a fine not exceeding two hundred thousand dollars for each day that the offence continues.

Background

The Commission originally licensed RSTV in Decision CRTC 86-152 dated 3 March 1986 to provide a low-power, over-the-air subscription television (STV) service to LaHave, Riverport and surrounding areas. Subsequently, in Decision CRTC 90-917 dated 19 September 1990, the Commission renewed RSTV's licence until 31 August 1995.

In Notice of Public Hearing CRTC 1992-17-1 dated 18 December 1992, the Commission called RSTV to appear at a public hearing in Moncton to discuss the licensee's failure to respond to complaints from subscribers and correspondence from the Commission and the then Department of Communications (DOC), as well as to consider the licensee's failure to provide service to a significant portion of its authorized service area.

Following the Moncton hearing, the Commission issued Public Notice CRTC 1993-100 dated 30 June 1993, in which it indicated its grave concern with RSTV's continued failure to respond satisfactorily to the matters raised by its subscribers, the DOC and the Commission. The Commission put RSTV on notice that, if it did not fully rectify and address the specific problems and concerns set out in Public Notice CRTC 1993-100, the Commission intended, among other things, to call the licensee to a public hearing to show cause as to why its licence should be renewed at the time of its next licence renewal.

Since issuing Public Notice CRTC 1993-100, the Commission has continued to receive complaints from subscribers regarding, among other things, frequent service outages, delays in response to service calls, and failure to provide service to areas within the Grade B contour of the undertaking's authorized service area. Moreover, subscribers have continued to complain to the Commission that the licensee does not respond to their telephone calls and letters. The licensee continued to fail to respond to complaints from its customers, as well as to the requests from the Commission that it answer its subscribers' complaints. In addition, RSTV did not respond to the Commission's requests that the licensee submit an application for licence renewal and supply other relevant information. For these reasons, the Commission issued its February 1995 public notice calling RSTV to appear at the Halifax Public Hearing. In that notice, the Commission once again outlined its concerns with RSTV's performance, and stated that it would discuss these concerns with the licensee at the hearing.

The Halifax Public Hearing

(a) Subscriber Complaints

At the Halifax hearing, Dr. Don Himmelman appeared on behalf of the licensee, accompanied by legal counsel, Mr. Wayne K. Allen, Q.C. The Commission discussed with these representatives the issue of subscriber complaints and how the licensee handles them. Among the complaints received by the Commission regarding RSTV's service were a number claiming that the licensee allows undue delays in responding to service calls.

At the hearing, the licensee argued that it does answer service calls in a timely fashion. The licensee stated that it has engaged a telephone answering service in Bridgewater where customers can call if they require repairs.

According to the licensee, a part-time service employee checks with the answering service daily. The licensee contended, however, that a customer who calls for service on Friday is not justified in complaining if he or she does not receive a response until the following Monday.

The Committee for Improved T.V. Service in Riverport, LaHave and surrounding area (the Committee), which represents some 87 subscribers to RSTV's service, appeared at the hearing. In presenting the Committee's intervention at the hearing, its representative claimed that calls placed to the answering service are frequently not answered. The Committee contended that the only way to obtain service is to telephone the home of the part-time service employee.

Mr. Brian Lohnes also presented an intervention at the hearing in which he stated that the only phone number available to RSTV's customers is that of the telephone answering service. Mr. Lohnes also stated that in August 1994 he had to call the answering service daily for three weeks before receiving a response.

The Commission also discussed with RSTV complaints by subscribers claiming that, even though the undertaking is currently authorized to provide eight channels, the number of signals of good quality actually available on the system frequently varies between three and six.

RSTV acknowledged that it was unable to provide all eight channels for the period of time that Telesat's ANIK-D satellite was not functioning. The licensee further stated that, at other times, it has been unable to provide full service because of disruptions in transmission caused by weather conditions, or limitations affecting individual subscribers at particular locations due to the topography of the area and the restrictions of the STV system. The licensee claimed that, in any case where a subscriber receives less than the full package of eight channels for any period of time, RSTV rebates a portion of its subscriber fee. According to the interventions presented at the hearing by the Committee and Mr. Lohnes, the licensee forwarded their accounts to a collection agency when they withheld payment of their monthly subscriber fees because they had not received full service.

In its 30 June 1993 public notice, the Commission required the licensee to submit, within one month of that date, evidence that it had made the necessary arrangements (such as hiring the necessary staff) to ensure that subscribers' concerns are handled in an efficient manner, from both a business practice and technical perspective. To date, the licensee has not hired the office personnel or the technical staff needed to deal efficiently with subscribers' concerns. Moreover, based on its evaluation of the evidence presented at the hearing, the Commission is not satisfied that the licensee has made other appropriate arrangements to address these concerns.

In its 30 June 1993 public notice, the Commission also required the licensee to submit, within three months of that date, written confirmation that it has resolved, to the Commission's satisfaction, all subscriber complaints relating to the licensee's business practices. While the licensee did submit correspondence to the Commission in this regard, the Commission is not satisfied that the licensee has provided evidence that it has resolved all subscriber complaints. Given the seriousness of the Commission's concerns, as expressed in Public Notice CRTC 1993-100, the Commission expected that the licensee would be more responsive to its subscribers' concerns by dealing expeditiously with their complaints. In view of the volume of complaints the Commission has received regarding RSTV's service since the issuance of Public Notice CRTC 1993-100, and in light, as well, of the concerns expressed in six interventions submitted in response to Public Notice CRTC 1995-2-1, the Commission can only conclude that the licensee's dealings with its subscribers have deteriorated even further. As stated by one intervener at the hearing:

 ... very little has changed over the last two years ... . In fact, if anything, the problem has probably gotten worse.

(b) Deposits

In Public Notice CRTC 1993-100, the Commission also expected the licensee to return refundable deposits to all subscribers from whom such deposits have been collected, whether or not a subscriber had requested such a refund. At the hearing, the licensee stated that it had returned deposits to some subscribers at the time they discontinued service. Despite the Commission's expectation, however, RSTV indicated that it did not intend to return the refundable deposit to all subscribers. In response to a request from the Commission at the hearing, the licensee subsequently advised in a letter dated 28 April 1995 that it currently holds security deposits for 133 customers, thus effectively confirming that RSTV has completely disregarded the Commission's expectation in this regard.

(c) Failure to File a Renewal Application Form in a Timely Fashion

In letters dated 26 May, 2 September and 1 December 1994, the Commission reminded the licensee that, if it wished to continue to carry on its broadcasting undertaking after the expiry date of its current licence, RSTV must complete and submit to the Commission a licence renewal application form. The Commission specifically advised RSTV in the letter dated 1 December that, if the licensee did not submit, by 16 December 1994, a complete licence renewal application and the other information requested, the Commission might not be able to renew RSTV's licence. Despite the Commission's repeated reminders, the licensee did not submit a complete licence renewal application prior to the Halifax hearing.

When asked at the hearing if it wanted to have its licence renewed, the licensee responded affirmatively. Upon further questioning, however, the licensee stated that it could not submit a complete application at that time, but could do so within one week. The Commission has since received an application form for licence renewal, but one that is incomplete. In light of the present decision, the Commission will return this form to the licensee.

(d) The Commission's Requests for Information and Documentation

Pursuant to the Broadcasting Information Regulations, 1993 (the regulations), a licensee must, on or before 30 November of each year, file statements of financial accounts for the year ending the previous 31 August. The regulations also require a licensee to file with the Commission any written information requested by the Commission regarding matters within the Commission's jurisdiction that relate to the licensee's undertaking.

 (i) Annual Returns

Over the course of the current licence term, the licensee failed to respond to requests by the Commission for annual financial returns. When questioned at the hearing regarding this apparent breach of the regulations, the licensee offered no explanation or comments. The licensee did make a commitment to file statements of accounts for each year from 1990 to 1994 by the end of business on 13 April 1995. To date, the licensee has not filed this documentation with the Commission.

 (ii) Response to Written Customer Complaints

The licensee has failed, on a number of occasions, to provide responses to its subscribers' written complaints. For example, in 1994 the Commission sent RSTV a number of reminders, culminating in a letter dated 11 October 1994. In that letter, the Commission reminded the licensee that it had not received responses to many subscriber complaints, some of which had been forwarded to the licensee for comment seven to eight months before. A licensee's failure to furnish information to the Commission in relation to written complaints constitutes a breach of the regulations.

When asked at the hearing to explain how it handles written complaints, Dr. Himmelman stated that "it is inappropriate to .. delegate certain responsibilities" and that, for this reason, he answers all letters personally, "even if it does mean a delay". Dr. Himmelman also indicated that he has dealt with all correspondence "up until March of 1994". The Commission reiterates that, in the case of many customer complaints, it received no evidence of any response by the licensee.

 (iii) DOC's 1992 Report

In Public Notice CRTC 1993-100, the Commission expressed its concern regarding the licensee's failure to respond to correspondence from both the Commission and the DOC concerning a report prepared following an inspection of the system conducted by the DOC at the Commission's request. The DOC's report, dated April 1992, indicated that the system's current transmitting antenna configuration does not conform to that specified in RSTV's technical brief of 14 September 1985, as approved by the DOC. In addition, the DOC's report revealed that RSTV's system "does not provide Grade B coverage to a significant portion of the area identified as the official Grade B contour".

In a letter dated 28 May 1992, the DOC forwarded a copy of this report to RSTV and asked the licensee to correct the situation, either by returning the system to the operating parameters specified in the 1985 technical brief, or by applying to have the approved service area revised to reflect the system's actual operational parameters. RSTV did not respond to the DOC's letter, nor did it respond to correspondence from the Commission requesting the licensee to comment on the DOC's report. Accordingly, in Public Notice CRTC 1993-100, the Commission expected RSTV to submit the necessary applications for licence amendments to reflect the current coverage contour. It further required the licensee to submit to the Commission written confirmation, within one month of 30 June 1993, that it had made the requisite applications, in order to deal with the technical problems identified in the DOC's report. To date, the licensee has not complied with these requirements.

At the hearing, the licensee advised the Commission that, rather than changing the transmitting antenna configuration to conform with the approved configuration, it had applied to the Department of Industry to have the approved service area revised to reflect the system's actual operational parameters. The Commission notes in this regard that, by letter dated 16 February 1995, the Department of Industry advised the licensee that it was also required to file, within 45 days of the date of that letter, an application with the Commission for authorization to make the change in the system's Grade B contour. The licensee acknowledged at the hearing that it had not submitted such an application to the Commission, but indicated that it would do so within two weeks. To date, the Commission has not received such an application.

The Commission also notes that the licensee has done nothing to rectify the signal deficiencies identified in DOC's 1992 report in areas within the system's Grade B contour.

 (iv) The Department of Industry's 1994 Report

Another area of concern discussed at the hearing was RSTV's failure to respond to a letter from the Commission dated 21 July 1994 asking the licensee to comment on a 1994 report prepared by the Department of Industry on the licensee's system. The Department of Industry's report concluded that "all subscribers surveyed reported frequent outages, unacceptable delays in RSTV's response to service calls and generally poor service". The Commission's letter asked the licensee to provide comments within 30 days of receipt. To date, the licensee has not responded to the Commission's request.

At the hearing, the licensee acknowledged that it had not yet dealt with the report, but stated that it would pass it on to a technical consultant for comments. When asked when it would provide the Commission with comments on the report, the licensee answered that it would do so once the consultant had responded with his comments. The licensee made no comment when asked to explain the apparent breach of the regulations resulting from its failure to provide the comments requested.

Conclusion

In Public Notice CRTC 1993-100, the Commission put RSTV on notice regarding many serious concerns surrounding the operation of its radiocommunication distribution undertaking serving LaHave, Riverport and surrounding areas and informed the licensee of the steps it was expected to take to remedy those concerns. Based on all the evidence available to it, including complaints submitted by subscribers, interventions and the presentations at the hearing, the Commission is satisfied that RSTV has not corrected the problems identified in Public Notice CRTC 1993-100. Moreover, the Commission finds unacceptable RSTV's business practices and its continued failure to respond to the concerns of its customers. Accordingly, the Commission will not renew the licence granted to RSTV to carry on the radiocommunication distribution undertaking authorized to serve LaHave, Riverport and surrounding areas. RSTV's licence will therefore expire on 31 August 1995.

The Commission notes that, prior to the hearing, the licensee filed information with the Commission, which, in the licensee's view, explained why Dr. Himmelman was unable to deal effectively with customer complaints, correspondence and filing requirements. In the circumstances, the Commission agreed to treat the information in confidence. While respecting that confidentiality, the Commission wishes to emphasize that, if an individual owner is unable, for personal reasons, to ensure the effective management of his or her corporation, it is incumbent on that owner to find other means by which the obligations of the corporate licensee are carried out. Accordingly, the Commission finds that the explanations provided by Dr. Himmelman in confidence are not satisfactory in the circumstances.

In another decision released today (Decision CRTC 95-295), the Commission has approved an application by Bragg Communications Incorporated to change the authorized service area of its cable distribution undertaking serving Bridgewater, Blockhouse, Lunenburg and surrounding areas, by including Rose Bay, Riverport, Lower Rose Bay, Kingsburg, Upper Kingsburg, Lower LaHave, East LaHave, Middle LaHave, Indian Path, Bayport, Feltz South, Pentz, LaHave, Dublin Shore, West Dublin, Crescent Beach and adjoining areas.

Allan J. Darling
Secretary General

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