ARCHIVED -  Public Notice CRTC 1987-8

Public Notice

Ottawa, 9 January 1987

Public Notice CRTC 1987-8

REGULATIONS RESPECTING TELEVISION BROADCASTING

Related Documents: Public Notices CRTC 1986-176 dated 23 July 1986, 1986-247 dated 19 September 1986 and 1986-270 dated 29 September 1986.

I. INTRODUCTION

Pursuant to subsection 16(1) of the Broadcasting Act, the Commission has enacted Regulations Respecting Television Broadcasting. These new regulations have been registered with the Clerk of the Privy Council to come into effect today. A copy of the Regulations will be published shortly in the Canada Gazette. A copy of the new regulations is contained in Part V of this Public Notice.

The new regulations are the culmination of an extensive public consultation involving consumer groups, independent program producers, television broadcasters, industry associations, governments, provincial securities commissions, private individuals and other interested parties. The new regulations include provisions concerning the advertising of alcoholic beverages and other products to which the Food and Drugs Act applies, which were the subject of a separate public hearing as described in Public Notice CRTC 1986-247 of 19 September 1986.

In Public Notice CRTC 1986-176 of 23 July 1986, entitled "Proposed Regulations Respecting Television Broadcasting", the Commission proposed revised regulations resulting from a fundamental review of the existing television regulations occasioned by the rapidly changing communications environment. The Commission's primary objective in undertaking the review was to provide a regulatory framework that is free of outdated regulations and suited to the increasingly competitive modern broadcasting environment. The new proposals were designed to encourage the diverse elements of the Canadian broadcasting system to place increased emphasis on the use of Canadian creative resources and to respond to the requirements and tastes of the Canadian public. The Commission's proposals also reflected its commitment to a more streamlined and supervisory regulatory framework.

In response to a request for comments in Public Notice CRTC 1986-176, the Commission received a total of 45 written submissions from a wide variety of sources. At the hearing, which began on 30 September 1986 in Hull, Quebec, the Commission received oral submissions from the following: Multilingual Television (Toronto) Ltd., Global Communications Ltd., the Government of Ontario, the Fédération professionelle des réalisateurs et réalisatrices, the CTV Television Network Ltd., the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA), the Canadian Conference of the Arts, the Association canadienne de la radio et de la télévision de langue française (ACRTF), the Regroupement des Organismes Communautaires de Communications du Québec (ROCCQ), the Comité de promotion pour la défense de la télévision régionale, the Syndicat canadien de la fonction publique, the Canadian Association of Broadcasters (CAB), the Association of Canadian Advertisers Incorporated, the Union des Artistes, CANWEST Broadcasting (CKND-TV) and Colorization Inc. The Commission wishes to acknowledge the important contribution made by all submissions. The opinions and expertise reflected in the submissions played a significant role in the Commission's final determination of the new television regulations.

II. HIGHLIGHTS OF THE NEW REGULATIONS

The new television regulations apply to both station and network operators, but not in respect of programming that is broadcast by a licensee using a signal contained in a second audio program (SAP) channel or a multiplex channel. The general approach taken by the Commission is to apply all provisions of the television regulations only where the material on the channel under consideration is identical to the audio portion carried on the main channel as, for example, with stereo sound. Further discussion of the policy issues related to Multichannel Television Sound (MTS) is contained in Section III of this document.

(i) Proposed Condition of Licence Approach to Canadian Content

In Public Notice CRTC 1986-176 the Commission proposed:

 to introduce some flexibility into the Canadian content time requirements contained in the regulations by allowing a licensee, by condition of licence, to reduce the time allocated to Canadian content over the entire broadcast day from 60 to 50 percent, provided the licensee meets certain requirements.

In particular, the Commission proposed:

 to allow a participating licensee to reduce the number of hours devoted to Canadian programs provided it maintains the proportion of its gross revenues allocated to expenditures on Canadian programs equal to the licensee's best single-year performance over the previous three years.

The Commission's proposed condition of licence approach attracted considerable comment before and during the 30 September public hearing. While a number of submissions endorsed the idea in principle, many participants, such as Global, CANWEST and the CBC, recommended significant modifications to various aspects of the Commission's proposal. Others, such as the Union des Artistes and ACTRA, opposed the Commission's proposal outright. Considering the general lack of enthusiasm for the condition of licence approach put forward in Public Notice CRTC 1986-176, even among many television broadcasters and broadcast industry associations, such as the CAB and the ACRTF, the Commission has decided to withdraw its proposed condition of licence approach and retain the existing Canadian content requirements, except as described below.

Consequently, section 4 of the new regulations generally requires that the total amount of time devoted to the broadcasting of Canadian programs by stations or networks be not less than 60 per cent of the broadcast year, and not less than 60 per cent of the total time between 6:00 p.m. and midnight in the case of a public station or network (i.e. the CBC) or 50 per cent in the case of a private station or network.

However, where authorized by a condition of licence designed to enhance the quality or diversity of Canadian programs, an ethnic station or a remote station (as described in Section IV below) may reduce its level of Canadian content below the general requirements outlined above. A conventional station broadcasting ethnic programming may also apply for such a reduction in respect of its ethnic programming.

It should be noted that the attached regulations retain a 12-month reporting period, as announced in Public Notice CRTC 1986-270 of 29 September 1986. The new regulations also amend the reporting period to commence 1 September rather than 1 October, in order to ensure greater conformity with the fiscal year-end of the vast majority of licensees, as well as with the financial reporting procedures of the Commission. This provision will come into effect on 1 September 1987. In order to ensure that licensees meet their requirements for Canadian content with respect to the 1986-87 reporting year, sections 1, 2, 3, 4 and 8 of the existing Television Broadcasting Regulations will remain in force until 1 October 1987.

(ii) Programming Content

In Public Notice CRTC 1986-176, the Commission proposed to omit several provisions of the existing regulations which it considered to be outdated, covered by other legislation or regulations, or unnecessary to achieve the objectives of the Act. These included provisions setting out conditions for the television broadcast of advertising concerning bonds, shares, securities and commodities. While maintaining a concern for the public interest in the broadcast promotion of stocks, bonds and other assets, the Commission considers that its concerns on this issue overlap with those of provincial securities commissions. Since there are alternative means of safeguarding potential investors, the Commission is confident its regulations in this area can soon be deleted.

However, in their written comments, the Manitoba and Quebec Securities Commissions proposed that the Commission delay the elimination of the prohibition against the advertising of bonds, shares and other securities. The securities commissions were concerned that adequate time be allowed to pass regulations or secure the passage of new legislation which would ensure that the advertising of bonds, shares and other securities was appropriately supervised. Accordingly, the Commission has decided to retain the regulation in respect of this matter until 1 September 1988.

With regard to the prohibition against broadcasting obscene or profane material, the prohibition in section 5(1)(c) has been continued in light of the uncertainty as to the nature and timing of planned amendments to the Criminal Code with respect to pornographic material. The Commission will examine any changes to the Criminal Code which are enacted in the future and determine at that time whether this provision remains necessary.

The new television regulations also contain changes to the provisions concerning the advertising of foods, drugs and alcoholic beverages as announced in Public Notice CRTC 1986-247. In keeping with that notice, the provisions relating to the broadcast advertising of alcoholic beverages in the new regulations retain the existing requirements for pre-clearance by the Commission of scripts for the advertising of alcoholic beverages. However, as of 1 April 1987, the new regulations do not require pre-clearance by the Commission of scripts for the advertising of products to which the Foods and Drugs Act applies.

The new regulations with respect to the television advertising of food, drugs and alcoholic beverages are identical to those for radio, contained in Public Notice CRTC 1986-248 19 September 1986.

(iii) Political Broadcasts

The Commission has adopted section 8 of the television regulations (Political Broadcasts) as proposed in Public Notice CRTC 1986-176.

In a written submission, the Radio-Television News Directors Association of Canada (RTNDA) requested that the Commission define more specifically the term "partisan political broadcast" in order to limit the applicability of the blackout provisions of the Broadcasting Act. However, the Commission cannot amend the Act through an amendment to its own regulations. The Commission therefore recommends that broadcasters who have concerns about this issue raise them with the Government of Canada with a view to amending section 28 of the Act.

Other aspects of the issue of political broadcasts will be the subject of a separate public notice in the near future.

(iv) Logs and Records

The regulations with regard to logs and records are substantially the same as those proposed in Public Notice CRTC 1986-176. These regulations are also in conformity with those described for radio in Public Notice CRTC 1986-248.

By subsection 10(5), a television licensee will be required to retain a clear and intelligible audio-visual recording of its programming. During the public hearing process, several broadcasters raised concerns that this provision would be financially onerous, particularly for smaller stations. At the public hearing, the Commission requested the CAB to conduct an informal survey to determine the potential costs of implementing such a provision. The Commission received the results of a survey from the CAB in a letter dated 16 October 1986. In the Commission's view, the costs of retaining audio-visual recordings of programming, as described in subsection 10(5), are not excessive and the value of these recordings to the public, the Commission and licensees outweighs possible concerns. Such recordings are essential to the enforcement of regulations and conditions and to dealing with the concerns and complaints of viewers. Accordingly, this provision remains in the new television regulations. However, it will not take effect before 1 September 1987 in order to provide licensees with sufficient time to acquire the appropriate equipment.

Until that time, licensees are required to retain a clear and intelligible audio recording of their programming.

The attached regulations also contain the Commission's new television program subclasses and key figures relating to the classification of individual programs. The program sub-classes, including new program categories, are identical to those proposed in Public Notice CRTC 1986-76 with two exceptions. In Schedule I, the Commission has added two sub-items under the item "producer": 4(2) a Local Program produced by an Affiliated Production Company; and 4(3) Other Canadian Program produced by an Affiliated Production Company. In response to a comment by TVOntario, schedule I also contains a program category entitled "Education" rather than the more limited category, "Instruction".

The Commission is willing to accept that educational broadcasting services normally provide educational programs. However, the logging provisions will permit educational broadcasters to identify each program with a 6(5)(A) or 6(5)(B) qualifier, and then to provide another appropriate program category designation which describes the content of each program more precisely.

For all services, the Commission will allow a television licensee to identify the content of its programs using a single program category or, if the licensee so chooses, as many program categories as required. However, in the latter event, the licensee must also indicate the amount of time dedicated to each sub-item inscribed on the programming log.

The Commission has adopted an updated classification scheme for program categories in keeping with contemporary television standards and practices that represents a substantial improvement over the previous categories which dated back to the 1960s.

A short description of each of the new program categories contained in Schedule I is presented in Appendix A.

(v) Advertising Material

The regulations relating to advertising remain substantially the same as those proposed in Public Notice CRTC 1986-176.

At the public hearing, both the CBC and the Comité de promotion pour la défense de la télévision régionale expressed some concern over the elimination of the prohibition against advertising material that makes use of any subliminal device. The Commission is confident that any concerns regarding the possible use of subliminal techniques can be adequately addressed within the terms of an industry code. Proposed guidelines for the development of industry codes or standards are being published for public comment in a separate document, Public Notice CRTC 1987-9, issued today.

With regard to the elimination of the requirement to register commercial messages with the Commission, both the CBC and ACTRA argued that retaining the registration requirement would provide an incentive for advertisers to maintain appropriate levels of Canadian production. Considering the current level of Canadian production of commercial messages, the Commission has no plans to regulate the Canadian content of commercial messages and consequently believes it is unnecessary to retain the registration requirement. However, should the Commission determine that the production of Canadian commercial messages is declining significantly, it will review its decision in this matter.

Paragraph 11(3)(b) of the new television regulations provides additional flexibility for the promotion of Canadian programs. The Commission concurs with the position advanced by the CTV Network that allowing additional time for the promotion of Canadian programs in the evening hours will assist in attracting a larger number of viewers to such programs. Accordingly, the new regulations allow a total of two minutes of additional advertising material consisting of promotions for Canadian programs to be broadcast at any time during the period between 6:00 p.m. and midnight.

III. POLICY ON MULTICHANNEL TELE VISION SOUND (MTS)

(i) Introduction

Section 3 of the Regulations Respecting Television Broadcasting provides that the regulations do not apply in respect of programming in a signal contained in a second audio program (SAP) channel or multiplex channel. As indicated in the guidelines below, the Commission may impose additional requirements on the use of these channels in certain circumstances.

The regulatory approach described herein is characterized by minimum constraint on the development of new Canadian services and maximum opportunity to innovate. In particular, the Commission is of the view that a person who holds a licence to operate a television station is authorized by that licence to make use of its SAP channel, its multiplex channel and its stereo channel.

Approval to distribute services using these channels therefore will not be required. Licensees are, however, expected to adhere to the guidelines which follow and, of course, are required to meet all requirements of the Broadcasting Act.

While the Commission's approach is designed to minimize the regulatory burden on broadcasters, the Commission will monitor the development of these services with interest.

(ii) MTS and Cable Television

In view of the significant number of television viewers served by cable television systems, MTS services should be carried on cable television systems. Section 19 of the Cable Television Regulations, 1986 (Public Notice CRTC 1986-182) should ensure that a cable licensee distributes any MTS service associated with a television programming service, since the licensee is prohibited from altering or curtailing any programming source or radiocommunication in the course of its distribution, except as required or authorized by its licence or the Cable Television Regulations.

Although some cable television licensees are not presently capable of distributing MTS signals, their main distribution system should not pose technical problems if they chose to do so. However, certain equipment at the head-end of some systems would require adjustment, modification or replacement. At the subscriber's end of a system, a more significant technical problem may exist. Certain types of descramblers are incompatible with MTS signals and these descramblers would have to be modified or replaced to ensure compatibility. The Commission also notes that some types of converters available to the public are not compatible with MTS signals.

While solutions to the above problems are available, they require time to implement. The expense, in some instances, could be significant. The Commission expects television licensees to recognize that some cable television systems will require time to make the necessary adjustments.

(iii) Guidelines for MTS Services

1. Television broadcasters have a primary responsibility to fulfill the commitments made with respect to the main service they are licensed to provide. Any use of the MTS channels must not detract from the licensee's ability to meet all of its responsibilities, and to fulfill its Promise of Performance.

2. Licensees adding or modifying SAP or multiplex services must inform the Commission of the types of services to be provided.

3. While it is not the Commission's intention at this time to specify preferred uses for the SAP channel, the Commission would be concerned if long term commitments for the provision of services that are unrelated to the licensee's television programming service were to place constraints on broadcasters' ability to respond to future programming needs.

4. Revenues may be derived through advertising or subscription fees for SAP or multiplex services as appropriate.

5. Separate financial records should be kept for each SAP and multiplex service and should be made available to the Commission on request.

6. The revenue from the licensee's main television programming services or other services associated with such may not be used to subsidize SAP or multiplex services that are unrelated to the main service.

7. Although no regulatory requirements are being specified for SAP or multiplex services at this time, the Commission will be monitoring the development of such services and will make appropriate adjustments, if required.

8. Where appropriate, when capacity is available, licensees are encouraged to provide access to third parties on a mutually agreeable basis.

9. Technical quality on the main television channel should not be impaired by the use of MTS.

10. The presence or absence of MTS signals does not affect the determination of identical signals for the purpose of curtailment and substitution under the Cable Television Regulations, 1986.

11. Television licensees are expected to recognize that some cable television operators will require time to make the necessary modifications to carry MTS signals.

12. In the case of the stereophonic channel, licensees must meet the requirements of the Department of Communications but do not require authority from the Commission to distribute programming on this service.

IV. POLICY ON LOW POWER TELEVISION IN REMOTE COMMUNITIES

(i) Introduction

In Public Notice CRTC 1986-176 the Commission proposed a new policy designed to encourage off-air community television operations in remote or underserved communities which are not large enough to support a full range of Canadian over-the-air or cable services (i.e. operations that would exist in areas normally served by Part III licensees as defined in the Cable Television Regulations, 1986).

In the course of the public process leading to the hearing of 30 September 1986, the Commission received detailed written comments from the Ministry of Communications of the Province of Quebec, the Ministry of Transportation and Communications of the Government of Ontario, the Regroupment des Organismes Communautaires de Communications du Québec (ROCCQ) and the Association Canadienne de la Radio Television de Langue Française (ACRTF). Brief, generally supportive comments were made by the CTV Network and CFCN-TV Calgary.

The Commission has considered all of the comments received and herein is announcing a new policy in respect of low power television in remote communities (remote stations).

Although television viewers in many parts of the country are able to secure a considerable array of television services by means of off-air, cable and satellite signals, there are a significant number of Canadian households still unable to receive a full range of services.

For some time the Commission has been seeking means of promoting the extension of television services to remote and underserved communities. The objectives outlined in such documents as the Report of the Committee on Extension of Service to Northern and Remote Communities (1980) and The Costs of Choice (1985), with respect to the distribution of satellite broadcasting services in underserved communities, reflect the Commission's continuing efforts to ensure access to a wide range of television services by communities in all regions of Canada.

The Commission intends to adopt a flexible approach to the provision of additional, off-air, community-based television services in remote and underserved regions.

In assessing any applications for such low power, community-based operations, the Commission will take into account an applicant's ability and intention to adhere to the guidelines specified below.

(ii) Application

The policy outlined herein is applicable to low power television operations in remote or underserved communities, rather than "community television" as per Public Notice CRTC 1986-176. The policy is not therefore intended to apply to an off-air community television service adjacent to a major urban area, such as that of CHOY-TV (Télévision Communautaire de Saint-Jérome Inc.) operating in Saint-Jérome, Québec.

For the purpose of considering applications for low power television undertakings, such an undertaking should meet the criteria which follow:

a) The undertaking should serve a community which has no competing local or regional television service. A competing local or regional off-air television service shall be considered to be a service which is currently providing television programming to the community in question, and is selling television advertisements in the community in question on a regular basis.

b) The community should have no local community cable channel operating on a regular basis at the time of application.

c) The undertaking should be a service which is delivered through a low power transmitter (i.e. less than 50 watts on VHF or less than 500 watts on UHF). In exceptional circumstances, however, the Commission may consider applications for delivery by a higher power transmitter that uses a frequency allotted to the region.

d) The undertaking should be characterized by the local nature of its ownership, its programming and the market it is designed to serve.

In order to implement the Commission's policy on remote stations, it will be necessary to amend subsection 22(1) of the Cable Television Regulations, 1986. According to Subsection 22(1), a Part III licensee must distribute on the basic band of its undertaking the programming services of (a) all local television stations and (b) all regional television stations other than affiliates or members of a network of which a local television station is an affiliate. The Commission is of the view that a Part III licensee should not be required to distribute the programming service of a remote station, if that licensee provides community programming. The Commission therefore proposes to amend subsection 22(1) to allow a licensee providing such programming to be relieved, by condition of licence, of the requirements set out in paragraphs (a) and (b), where this is necessary. A separate public notice to this effect will be published shortly.

(iii) Role and Mandate

The Commission expects low power television services to develop community-oriented programming that contributes to the diversity of television services within the community. The Commission also expects operators of such services to serve all members of the community by offering some programs which appeal to everyone, as well as programs which deal with matters of interest to specific groups within the community. The Commission does not expect low power television services to operate over the full broadcast day in all cases.

A low power television service might include non-Canadian programs in its schedule provided it fulfills the requirements of the new television regulations or any conditions of licence regarding Canadian content requirements that the Commission may impose, as well as all responsibilities in respect of community programming as outlined above.

(iv) Financing and Ownership

With respect to ownership, the Commission expects a low power television service to be owned by an organization whose membership is primarily made up of representatives of the community at large. However, the Commission does not wish to preclude profit-oriented ownership arrangements.

The Commission expects that on-going financing for low power television services will derive from some form of support and local advertising. Advertising will be permitted on such stations as stipulated by the new television regulations or such conditions of licence as the Commission may determine.

(v) Conditions of Licence

The Commission recognizes that, in many cases, it may be difficult for operators of low power television services in remote and underserved areas to meet all the requirements of the television regulations. To encourage the development of such services, the Commission will, upon application, consider approving specific conditions of licence which would replace certain portions of the following sections of the new regulations:

(a) Canadian programs (Section 4)

(b) Logs and Records (Section 10)

(c) Advertising Material (Section 11)

(vi) Conclusion

By means of this policy, the Commission wishes to encourage the development of services designed and operated by local communities in remote or underserved areas to meet their own needs. However, the Commission encourages prospective applicants to be guided by the principles set out in this document.

Fernand Bélisle Secretary General