ARCHIVED - Broadcasting Decision CRTC 2003-8

Broadcasting Decision CRTC 2003-8

Ottawa, 9 January 2003

CHUM Limited
Toronto, Ontario

Application 2002-0534-5
Public Hearing in the National Capital Region
18 November 2002

CITY-TV Toronto - transitional digital television licence

1.

The Commission has received and considered an application from CHUM Limited (CHUM) for a licence to carry on a digital television undertaking in association with CITY-TV Toronto. This was the first such application to come before the Commission. The applicant proposed that the station simulcast the current analog programming service of CITY-TV Toronto, with the exception of up to 14 hours per week of programming that would not be duplicated on the analog service. The digital undertaking would operate from the CN Tower on channel 53C with an average effective radiated power (ERP) of 600 watts.

2.

The Commission received two interventions in support of this application and one comment.

Commission policy

3.

The Commission set out its policy framework for the transition from analog to digital television in A licensing policy to oversee the transition from analog to digital, over-the-air television broadcasting, Broadcasting Public Notice CRTC 2002-31, 12 June 2002 (transitional digital TV policy). Some of the key elements of that policy framework are the following:

• Digital technology will be treated as a replacement for analog technology.

• A voluntary, market-driven transition model, without mandated deadlines, is the most appropriate approach in Canada.

• A new transitional digital television licence will be issued for each digital television undertaking, subject to the Commission's approval of an application. Licensees who wish to use digital television facilities to provide programming consisting essentially of a simulcast of their existing analog services will qualify for licensing, subject to specific terms and conditions. The duration of a licence term will be considered as part of the application process.

• The Commission will give fast track consideration to applications by existing over-the-air broadcasters that accord with the Commission's transitional digital policy and are based on the Department of Industry's allotment plan for DTV.

• Existing broadcasters are encouraged to apply early for new transitional digital television licences and to implement the digital transmitters necessary to make the transition.

• The Commission's existing policies and regulations, as well as the conditions of licence currently applicable to a broadcaster in respect of its analog television service, will also apply to any transitional digital programming service the broadcaster may be licensed to provide. These include requirements for the provision of 60% Canadian content during the broadcast year and 50% during the evening broadcast period, and for the exhibition of a minimum of 8 hours per week of priority programming where required by condition of licence.

The Commission's determination

4.

The Commission approves the application by CHUM for a licence to carry on a digital television undertaking in association with CITY-TV Toronto. Except as qualified below, the Commission finds that the application conforms to the transitional digital TV policy framework.

Programming

Canadian content obligations and the 14 hour program allowance

5.

The applicant committed to simulcast the current programming service of CITY-TV with the exception of up to 14 hours per week of supplementary programming that would not be duplicated on the analog service. The applicant further committed to ensure that a minimum of 50% of the unduplicated, supplementary programming broadcast by the undertaking is Canadian. The Commission requires, by condition of licence, that the licensee adhere to these commitments. The Commission further requires, by condition of licence, that all of the unduplicated, supplementary programming broadcast on the undertaking be broadcast in a wide screen, high definition (HD) format.

Simulcast of high definition and wide screen programming, and program rights availability

6.

As part of the proceeding, the Commission asked the applicant to comment on the possible imposition of conditions of licence reflecting, among others, the two policy principles in the transitional digital TV policy relating to the simulcasting of HD and wide screen programming. Specifically, the Commission asked whether CHUM would adhere to conditions of licence requiring that:

• all of the simulcast programming on the undertaking that has been produced in the wide screen 16:9 aspect ratio be broadcast in that aspect ratio; and,

•  all of the simulcast programming on the undertaking aired during the evening broadcast period that has been produced in HD also be broadcast in HD.

7.

CHUM responded that it would accept these terms as conditions of licence, provided that the words "if available" were added. CHUM was concerned that, while a wide screen or HD version of a program may exist, it may not always be possible to acquire the rights to these versions.

8.

The availability of rights to HD and wide screen (16:9 aspect ratio) programming was an issue raised in the proceeding that led to the transitional digital TV policy. Broadcasters were concerned that the rights to such programs, especially for productions originating in the U.S., may be sold separately from the rights to the same programs produced in the traditional analog format, or may not be sold in the Canadian market at all. The issue remains unresolved and, as such, has been raised in submissions filed in response to Call for comments on a proposed policy framework for the distribution of digital television services, Broadcasting Public Notice CRTC 2002-32, 12 June 2002.

9.

In a letter to the Commission dated 6 September 2002, CHUM spoke to these concerns regarding the availability of program rights, and requested flexibility regarding the simulcasting of HD and wide screen programming:

It is certainly CHUM's intent to obtain high definition copies of all programming available and to air same... Nevertheless, given concerns over piracy, some studios are simply refusing to make HD versions of feature films and other programming available. Similarly, the fact that a movie may have been shot in wide screen 35 mm does not mean a distributor is willing or able to make a wide screen version available for broadcast use.

10.

The Commission notes CHUM's concerns, and acknowledges that there may be extraordinary cases when HD or wide screen versions of programs exist, but cannot be obtained. In the circumstances, it would be inappropriate to impose conditions of licence requiring categorically that all simulcast programming be in the 16:9 aspect ratio wide screen format or that all simulcast programming during the evening broadcast period be in HD. Accordingly, the wording contained in the conditions of licence set out in the appendix to this decision has been modified from that set out above, so as to take into account the availability to the licensee of wide screen and HD versions of the programs that it simulcasts.

Acquisition of separate program rights

11.

In its intervention, Bell Globemedia (BGM) commented that HD rights and analog rights might be sold separately to different purchasers. BGM stated that, in discussing this matter with CHUM executives, the applicant has indicated that it would be willing to make a commitment not to purchase DTV/HDTV rights for any program (or any portion of a program) to which analog rights have already been acquired by any other licensed programming undertaking, including conventional, specialty or pay services. In its response to BGM's intervention, CHUM committed not to acquire DTV/HDTV rights separately from the analog rights to any program.

Data transmission

12.

In the transitional digital TV policy, the Commission expressed the view that DTV should be used to promote the development of new Canadian programming of high quality, and to make this available to viewers in a picture format that is superior to the current analog NTSC format. To that end, the Commission emphasized that broadcasters should ensure that the high definition programming they purchase or produce is transmitted to viewers without loss of signal quality. As such, the Commission requires, by condition of licence, that the licensee ensure that the transmission of data does not affect the quality or quantity of high definition programming

Technical considerations

13.

As proposed, the undertaking would operate from the CN Tower on channel 53C with a directional antenna and maximum ERP of 980 watts (average ERP of 600 watts), and with an effective antenna height above average terrain (EHAAT) of 515 metres. These proposed technical parameters would result in an ERP of less than half the maximum permitted by the Department of Industry (the Department). As a consequence, the digital service area would be significantly smaller than the current analog service area of CITY-TV. Moreover, at the proposed ERP level, the digital service area would be further reduced by interference from other stations.

14.

In the transitional digital TV policy, the Commission encouraged broadcasters to construct their digital facilities in a manner that would produce coverage that matches their current analog coverage, within the constraints of the Department's allotment plan. The fact that the digital service area proposed by CHUM would fall short of that produced by CITY-TV's existing analog transmitter is at odds with the Commission's policy.

15.

In response to questions as to why CHUM had applied for a channel that would be subject to interference, CHUM advised that it had requested the Department to change the channel designated for the proposed undertaking under the DTV allotment plan from channel 66C to 53C because of its concern that channels 60 to 69 might be reallocated to other services. Moreover, CHUM submitted that its existing antenna could accommodate channel 53, but not channel 66.

16.

The Commission notes that, during the analog-to-digital transition period, the Department would allow a maximum ERP for this channel of 2,200 watts at the EHAAT of 515 metres. These parameters would mitigate some of the interference limitations and provide a service that more closely approximates the existing analog service of CITY-TV Toronto. The Commission further notes, based on CHUM's own estimates, that there would be a cost of $92,400 associated with increasing the ERP to the maximum level allowed by the Department during the transition period.

17.

This is the first licence application for a transitional digital television undertaking to be considered by the Commission. It involves a prominent service in the largest market in the country. In the Commission's view, it is important that this undertaking provide signal coverage that approximates, as closely as possible, that of the existing analog service and that it offer the best possible signal quality, in keeping with the transitional digital TV policy.

18.

At the same time, the Commission does not wish to discourage CHUM's early adoption and transition to digital over-the-air transmission by imposing an immediate requirement on this applicant to achieve the optimum ERP level. For all of these reasons, by condition of licence, the Commission requires the licensee, within one year of the date that its new digital television undertaking commences operations, to file an application to increase the undertaking's ERP to the maximum level permitted by the Department.

Issuance of the licence

19.

The Commission will issue a transitional digital television licence to CHUM subject to the conditions set out in the appendix to this decision. The licence will expire on 31 August 2009, coincident with the expiry of the CITY-TV Toronto licence.

20.

The Commission reminds the licensee that, pursuant to section 22(1) of the Broadcasting Act, no licence may be issued until the Department notifies the Commission that its technical requirements have been met, and that a broadcasting certificate will be issued.

21.

Furthermore, the licence for this undertaking will be issued once the licensee has informed the Commission in writing that it is prepared to commence operations. The undertaking must be operational at the earliest possible date and in any event no later than 24 months from the date of this decision, unless a request for an extension of time is approved by the Commission before 9 January 2005. In order to ensure that such a request is processed in a timely manner, it should be submitted at least 60 days before this date.

22.

Because this licensee is subject to the Employment Equity Act and files reports concerning employment equity with Human Resources Development Canada, its employment equity practices are not examined by the Commission.

Secretary General

Appendix to Broadcasting Decision CRTC 2003-8

Conditions of licence