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Decision
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Ottawa, 17 May 1989
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Decision CRTC 89-269
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Newfoundland Broadcasting Company Limited
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St. John's, Argentia, Bonavista, Corner Brook, Clarenville, Deer Lake, Gander, Grand Bank, Grand Falls, Irishtown, Lawn, Marystown, Red Rocks, St. Albans, Stephenville, Swift Current, Glenwood, Twillingate, Bay Bulls and Tors Cove, Newfoundland - 881650600
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Following a Public Hearing in Halifax commencing 6 December 1988, the Commission renews the broadcasting licences for CJON-TV St. John's and its 19 rebroadcasting undertakings serving the other localities noted above from 1 October 1989 to 31 August 1990, subject to the conditions specified in the appendix to this decision and in the licences to be issued. This period should allow sufficient time for the licensee to respond to the serious concerns set out in this decision. The Commission will assess the licensee's performance in this regard at a hearing to be held early in 1990 concerning any further renewal of the licences for CJON-TV and its rebroadcasters.
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Newfoundland Broadcasting Company Limited (NTV) is owned and controlled by Mr. G.W. Stirling. CJON-TV was first licensed in 1955; today, the St. John's television station and the licensee's chain of rebroadcasting undertakings, together with 17 other rebroadcasting transmitters licensed to various community groups and associations, provide CTV network service to approximately 90% of all households on the island of Newfoundland. NTV is also the licensee of CHOZ-FM St. John's and its rebroadcasting stations located in eight other Newfoundland communities.
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In general the Commission considers that the past performance of this licensee in the area of news and other local programming leaves much to be desired, and that its viewers do not receive the quality of service they might reasonably expect, given NTV's financial and other resources. Moreover, there was little evidence presented by the licensee, either in its application or at the hearing, of any meaningful plans on NTV's part to improve upon this performance.
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Among the Commission's particular concerns at the hearing was the inadequacy of NTV's quantitative commitments for the production of original local programs on CJON-TV. A further concern was that the licensee's Canadian content commitment appeared to be lower than the minimum regulatory requirement and was apparently based on a broadcast day longer than that defined in the Television Broadcasting Regulations, 1987 (the regulations). The Commission was also concerned by the absence of firm commitments by NTV for the production of local programs in any of the underrepresented categories, and by the licensee's plans to continue to schedule much of its locally-produced programming at times when, in the Commission's view, such programming could not be expected to attract large audiences.
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On 16 December 1988, in light of certain discrepancies that appeared between the information contained in the written application and that given by NTV at the hearing, the Commission requested the licensee to submit logger tapes for the week of 4 to 10 December 1988. The Commission's subsequent analysis of the logger tapes gave rise to concerns in addition to those noted above. Among these new concerns was an apparent breach of subsection 10(5) of the regulations requiring the retention of clear and intelligible logger tapes in that, for the period between 3:55 a.m. on 4 December and 2:56 p.m. on 5 December, or approximately 35 hours, the tapes submitted by the licensee carried no video component and suffered from poor audio quality.
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The Commission's analysis also revealed several apparent contraventions of section 7 of the regulations; this section specifies the approvals and clearances that must be obtained prior to the broadcast of commercial messages for products to which the Food and Drug Act applies. The problem arose in connection with the licensee's broadcast of the U.S. network program "ABC News Nightline", which contained uncleared commercials.
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A further concern arising from the Commission's analysis was NTV's apparent contraventions of its condition of licence requiring adherence to the Broadcast Code for Advertising to Children, including the placement, adjacent to children's programming, of advertisements for products not intended for use by children; the promotion of a product or a service more than once in any half hour of children's programming; and the broadcast of more than four minutes of commercial messages in any one half hour of children's programming.
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The results of the Commission's analysis were conveyed to the licensee in a letter dated 30 January 1989. It requested the licensee to comment on each issue and to indicate the measures it would take to remedy the problems identified by the analysis.
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The licensee submitted its reply to the Commission in a letter dated 28 February 1989. In its letter, NTV provided explanations regarding the Commission's observations, but did not deny the occurence of any of the incidents that gave rise to the concerns noted above. While the Commission notes the procedures that the licensee indicated will be implemented to prevent the future broadcast of uncleared commercials, concerns remain with respect to logger tapes and the licensee's adherence to its condition of licence dealing with children's advertising.
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Regarding logger tapes, NTV stated that it would henceforth bypass the technical equipment responsible for the video signal loss discovered by the Commission. There was, however, no indication of the measures it would take to prevent recurrence of the audio problems, nor did the licensee suggest that it had instituted any routine procedures to verify that the logger tape equipment is functioning properly.
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With respect to NTV's repeated breaches of the condition of licence pertaining to children's advertising, the licensee attributed these to operator error and problems encountered with a new computer system. The licensee added:
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It will be some months before we can even hope to completely avoid all computer transition errors [affecting] the commercial levels within our children's programming... in order to bring [the levels] back in line with the provisions of "The Broadcast Code for Advertising to Children".
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The Commission has considered the licensee's explanation regarding the contraventions of its condition of licence and finds it unacceptable. In the Commission's view, it is the licensee's responsibility to ensure that this and all other conditions of licence are adhered to regardless of the circumstances. Should there continue to be problems associated with the introduction of its new computer system, the licensee must introduce other parallel procedures immediately to allow full control over the placement and broadcast of commercial messages, and maintain these procedures in place until testing of the new computer system is completed.
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The Commission requires NTV to report within 30 days confirming that it has taken appropriate action to ensure its complete and ongoing compliance with the provisions of section 7 and subsection 10(5) of the regulations and with its condition of licence pertaining to children's advertising. The efficacy of the measures taken by the licensee in this regard will be examined again at the time of licence renewal.
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The Commission also has concerns regarding the licensee's present performance and future plans in the areas of local program production and scheduling. With regard to the amount of original local programs broadcast on CJON-TV, it is a condition of NTV's current licence that the licensee provide a minimum of 10 hours 25 minutes of such programs each week. Schedule I of the Promise of Performance submitted with NTV's renewal application, however, contained a commitment to broadcast only 9 hours per week of original local programs.
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At the hearing, NTV suggested that the amount would be greater if the Commission were to accept as an original local program a half-hour production then being broadcast at 5:30 a.m. on weekdays entitled "Jigs Breakfast". The licensee also requested that the Commission, for the purpose of calculating Canadian content, consider the period between 5:30 a.m. and 1:00 a.m. the following day as being CJON-TV's broadcast day.
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On 16 December 1988, NTV advised that it had increased the length of "Jigs Breakfast":
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The program now spans the period 5:30 -6:30 a.m. on a Monday to Friday basis. If the [5:30-6:00] time period is to qualify as part of our broadcast day, we will be in a position of providing a total of 14 hours of first-run local programming weekly.
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The Commission's analysis of the programming broadcast during the week of 4 to 10 December revealed that the audio portion of "Jigs Breakfast" was a simulcast of a morning radio program broadcast each weekday on CHOZ-FM; thus, in the Commission's view, this program could not be considered to be an original local television program produced by CJON-TV. Moreover, the video portion was a continuation of "Newfoundland Scenes", broadcast on CJON-TV at 5:00 a.m., and consisting primarily of footage of rural Newfoundland filmed by the licensee and repeated as often as four times per month, according to NTV.
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The meager resources allocated by the licensee to "Jigs Breakfast", and its place within the NTV schedule, give further substance to the Commission's concern regarding the strength of NTV's commitment to produce quality programming of relevance and interest to its viewers or to broadcast such programs at times convenient for more than only a handful of viewers.
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As for the request that the Commission permit NTV to select as its broadcast day a period longer than that established by the regulations, they make no provision for the granting of any such request. The term "broadcast day" is defined as:
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the period of up to 18 consecutive hours, beginning each day not earlier than six o'clock in the morning and ending not later than one o'clock in the morning of the following day, as selected by the licensee.
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The regulations require NTV to devote to the broadcast of Canadian programs not less than 60% of the "broadcast year". Moreover the regulations require licensees such as NTV to devote to the broadcast of Canadian programs not less than 50% of the "evening broadcast period", that being the total number of hours devoted to the broadcasting of programs between six o'clock in the afternoon and midnight during each broadcast year.
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The Commission will monitor closely the licensee's adherence to these Canadian content requirements. As provided for by subsection 4(11) of the regulations, in view of the time zone differences, in calculating Canadian content the Commission will continue to include Canadian programs broadcast by CJON-TV after the end of the broadcast day and up to the end of the last Canadian program received from the CTV network, broadcast at the time at which it is received. Under no circumstances will the total broadcast time in the broadcast day or in the evening broadcast period be calculated so as to exceed 18 hours or 6 hours respectively. At the time of licence renewal, the Commission will wish to examine with the licensee the reasons why it has apparently selected 6:00 a.m. to midnight as its broadcast day rather than avail itself of the flexibility provided for in the regulations.
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In its letter of 28 February 1989, NTV advised that, commencing 13 February 1989, in light of the Commission's concerns regarding "Jigs Breakfast", it had filled the time period between 6:00 and 6:30 a.m. on weekdays with a new program entitled "NTV News AM Edition".
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The Commission notes that it is thus the licensee's commitment for the new licence term to schedule, between the hours of 6:00 a.m. and midnight, a minimum of 11 hours 30 minutes per week of original local programs. NTV is required, by condition of licence, as set out in the appendix to this decision, to adhere to this minimum weekly level of original local programs, scheduled during the broadcast day. The Commission also requires the licensee to submit a revised Schedule I to its Promise of Performance reflecting this condition of licence.
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The licensee's original local programming in the current 1988/89 broadcast year consists of the following: "NTV News AM Edition" and "NTV Evening News", each representing 2 hours 30 minutes per week; "A Little Good News" accounting for 2 hours per week; the 60-minute Saturday program entitled "Week In Review"; six programs, each of 30 minutes duration, with the titles "Talk of the Town", "Sports Talk", "The Locker Room", "Canada In View", "View From the Hill", and "Speaking Out"; and five brief "News Breaks" each weekday, representing a further 30 minutes per week.
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With regard to the "Canada In View", this program in the information category is co-operatively produced by a number of CTV affiliates and was claimed as a local program by NTV. The Commission draws the licensee's attention to the definition of a local program, as clarified in Public Notice CRTC 1989-27 dated 6 April 1989, and reminds NTV that it may continue to claim credit for "Canada In View" as a local program only until the end of its new licence term.
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The Commission is satisfied that the amount of original local production imposed in the above-noted condition of licence is in line with the commitments of other television licensees with similar resources and serving comparable markets. Nevertheless, the Commission remains concerned that virtually all of NTV's local programming is in the categories of sports or information. Moreover, apart from NTV's early evening newscast and a half-hour episode of "A Little Good News" on Sunday, there are no local programs scheduled during the evening broadcast period.
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The application contains no firm plans for the production of any music and entertainment programming. In the past, the licensee has produced some specials featuring Newfoundland talent, as well as a number of musical vignettes of performances by individual artists, for insertion in breaks between programs. While NTV stated that it would continue to produce local specials, it made no commitments as to their number or subject.
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With respect to drama, NTV stated in its written application that it was:
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... actively pursuing the possibility of producing a series of full-length television plays during the 1988/89 season and beyond. We hope to be able to successfully conclude negotiations with representatives of the Rising Tide Theatre Group and the Stephenville Drama Festival organizers which would enable us to produce at least two full-length television dramas during the licence term.
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The Commission notes, however, that NTV's application contained no financial commitments in respect of program development whether for drama or any other program category. NTV emphasized at the hearing that it was not formally committing to implement these drama plans and that, in any case, it would not be able to proceed without the financial participation of Telefilm Canada.
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NTV's lack of clear plans for local talent development was criticized in an intervention presented by the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA), Newfoundland Branch. As stated by the intervener's representative, Mr. Mack Furlong:
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Newfoundlanders deserve to see their culture reflected back at them in drama, music and other art forms in addition to news and public affairs. We do not feel that the programming agenda of [NTV] provides any reasonable chance for local talent to develop or accurately reflect the culture of the province.
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The Commission shares ACTRA's concerns and, therefore, expects NTV to develop concrete plans for the production of drama programming, and to present such plans to the Commission at the time of NTV's next renewal hearing. The Commission also expects the licensee, at that time, to present a clear and adequate commitment for program development. Moreover, the Commission expects NTV to provide support for local talent by producing a minimum of three specials in the subcategories of either variety or music and dance, to be broadcast in the evening broadcast period during the eleven-month licence term herein granted.
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With regard to the production of local specials in other categories, the Commission expects the licensee to produce and broadcast a minimum of six special documentary or sports productions during the new licence term, over and above its regularly-scheduled local programs that comprise the 11 hours 30 minutes per week herein required by condition of licence.
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The Commission also expects the licensee to improve the scheduling of its local programs in order to make them available to the largest possible audiences. Noting the licensee's present practice of scheduling its programs "Talk of the Town" and "The Locker Room" at 6:00 a.m. on Saturday and Sunday respectively, the Commission expects NTV to reassess its scheduling of these local productions, and to schedule more of its local programming for broadcast in the evening broadcast period during the new licence term. This matter will be reviewed at the time of licence renewal.
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In the financial projections submitted with NTV's renewal application, the licensee indicated that it would expend the sum of $1,425,000 on Canadian programming for the broadcast year ending 31 August 1990. In Public Notice CRTC 1989-27 the Commission stated that it would expect licensees of private television stations that earned less than $10 million in total advertising revenues in 1987/88 to adhere to their forecasts for first-year expenditures on Canadian programming, at a minimum, and to adjust such expenditures in subsequent years in accordance with a prescribed formula linked to station advertising revenues. Consistent with that approach, inasmuch as the revenues of CJON-TV and its rebroadcasters were less than $10 million in 1987/88, the Commission expects the licensee to expend a minimum of $1,425,000 on Canadian programming in the broadcast year ending 31 August 1990.
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At the time of the next licence renewal, the Commission intends to examine in detail the steps taken and proposed by this licensee to rectify the many shortcomings and concerns noted herein. The Commission will also examine the adequacy of NTV's commitments for Canadian program expenditures in relation to the licensee's historical and current profitability. The Commission wishes to emphasize that it is satisfied that NTV has the financial resources to effect a clear and substantial improvement in the overall quality of its local program production, and expects the licensee to do so during the eleven-month licence term herein granted. The Commission is equally satisfied that the scheduling of these local programs at times when larger audiences are available would significantly improve the quality of service NTV provides to Newfoundland residents.
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In renewing these licences, the Commission authorizes the licensee to make use of the Vertical Blanking Interval. The Commission expects the licensee to adhere to the guidelines set out in Appendix A to Public Notice CRTC 1989-23 dated 23 March 1989 entitled "Services Using the Vertical Blanking Interval (Television) or Subsidiary Communications Multiplex Operation (FM)".
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At the hearing, the Commission questioned the licensee regarding its efforts in the area of closed captioning. NTV noted that it does not have the facilities to add closed captions to its local programs at this time, but "... would have a look at" the purchase of equipment that would enable it to do so. The Commission expects NTV, during the coming year, to explore the available methods that would enable viewers who are deaf or hearing-impaired to have access to locally-produced programs.
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The Commission also expects the licensee to acquire a telephone device for the deaf (TDD) during its new licence term and to install it in the master control room or wherever is most appropriate in order to ensure access to CJON-TV throughout the broadcast day by deaf and hearing-impaired viewers.
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The Commission received interventions from the Towns of Grand Bank and Burin concerning the reception quality of the NTV signal in those communities. At the hearing, the licensee acknowledged that it is having problems with its transmitters at Argentia and Marystown which form part of the chain feeding the transmitters located at Grand Bank and Burin:
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Recently we have been having some problems on the Burin Peninsula and over this past year we have been taking a serious look at it. We hope certainly within 12 to 24 months to put in a new installation in Placentia [CJAP-TV Argentia]. In addition to that, we will be doing an upgrading in Marystown.
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The Commission expects the licensee to proceed immediately with these plans to remedy the reception problems noted above. Its progress in this regard will be reviewed when the Commission considers the next licence renewal of CJON-TV. Consistent with the expectation set out in Decision CRTC 84-798 dated 14 September 1984, the Commission expects NTV to maintain a record of outages for all of its transmitters and to submit this information with its next application for licence renewal.
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The Commission acknowledges the interventions submitted in support of the current application by the Ministry of Culture, Recreation and Youth for the Government of Newfoundland and Labrador, the Newfoundland and Labrador Amateur Sports Federation and the Canadian Association of Broadcasters. The Commission notes that matters raised in the intervention by ACTRA's general secretary are addressed in Public Notice CRTC 1989-27.
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Fernand Bélisle
Secretary General
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APPENDIX
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Conditions of licence for CJON-TV St. John's and its rebroadcasting undertakings CJAP-TV Argentia, CJWB-TV Bonavista, CJWN-TV Corner Brook, CJCV-TV Clarenville, CJLW-TV Deer Lake, CJGN-TV Gander, CJOX-TV-1 Grand Bank, CJCN-TV Grand Falls, CJWN-TV-6 Irishtown, CJLN-TV Lawn, CJMA-TV Marystown, CJRR-TV Red Rocks, CJST-TV St. Albans, CJSV-TV Stephenville, CJSC-TV Swift Current, CJSG-TV Glenwood, CJND-TV Twillingate, CJON-TV-4 Bay Bulls and CJON-TV-5 Tors Cove, Newfoundland
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1. The licensee shall operate these broadcasting undertakings as part of the network operated by CTV Television Network Ltd.
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2. Subject to subsection 4(11) of the Television Broadcasting Regulations, 1987 the licensee shall provide at least 11 hours 30 minutes per week during the broadcast day (as defined in the above-noted regulations), of original locally-produced programming (exclusive of simulcasts with other undertakings operated by the licensee).
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3. The licensee shall adhere to the Canadian Association of Broadcasters' self-regulatory guidelines on sex-role stereotyping, as amended from time to time and approved by the Commission.
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4. The licensee shall adhere to the provisions of the Broadcast Code for Advertising to Children published by the Canadian Association of Broadcasters as amended from time to time and approved by the Commission.
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