|
Decision
|
|
Ottawa, 10 May 1990
|
|
Decision CRTC 90-436
|
|
Blue Water Broadcasting Limited
|
|
Leamington, Ontario - 893096800- 882839400
|
|
At a Public Hearing beginning on 20 February 1990 in London, the Commission considered an application by Blue Water Broadcasting Limited (Blue Water) to renew the broadcasting licence for CHYR/CHIR Leamington, expiring 30 September 1990. The Commission also heard an application by Blue Water for a licence to carry on an English-language (Group I - Pop and Rock - Softer) FM radio broadcasting undertaking at Leamington, operating on the frequency of 96.7 MHz (channel 244) with an effective radiated power of 20,730 watts. The applicant planned to cease operation of CHYR/CHIR upon implementation of the proposed FM service.
|
|
Following consideration of these proposals, the Commission denies Blue Water's application for a licence to operate a new FM station at Leamington.
|
|
The Commission has decided to renew the licence for CHYR/CHIR for a period of three years only, from 1 October 1990 to 31 August 1993, subject to the conditions specified in this decision and in the licence to be issued. This term should enable the licensee to respond to the concerns addressed herein, and to arrive at an acceptable plan for removal of the technical restrictions that, for some time, have affected the operation of the Leamington AM station.
|
|
Background
|
|
CHYR/CHIR is unusual among Canadian radio stations in that it operates on two AM frequencies, these being 710 kHz during daytime hours and 730 kHz at night. At a Toronto hearing on 28 April 1987, the Commission heard applications for authority to transfer the assets of the Leamington station, as well as those of CKJD and CJFI-FM Sarnia, from Rogers Broadcasting Limited to a numbered company later incorporated as Blue Water. Blue Water is effectively controlled by Key Radio Limited, a subsidiary of Maclean Hunter Limited.
|
|
Among the various initiatives and related commitments proposed by the purchaser at the 1987 hearing as being the benefits that would result from the proposed change in station ownership was its firm undertaking to apply without delay for approval to operate CHYR/ CHIR on a single AM frequency, both day and night. As explained at the 1987 hearing by Mr. Lou Tomasi, CHYR/CHIR's General Manager:
|
We do have this window because there are new international regulations just in force last year and that has enabled the DOC and FCC to allow CHYR to use 710 (kHz) full time. A second spokesperson for the purchaser at the 1987 hearing, Mr. Gerald Kennedy, reconfirmed the purchaser's commitment to ensure "... immediately upon approval (of the assets transfer), commencement of the project to change (to) a single frequency at Leamington". Based upon this and other commitments and considerations, the applications were approved by the Commission (Decision CRTC 87-574 dated 16 July 1987).
|
|
Despite the applicant's undertaking to proceed immediately towards realization of this particular benefit, and despite the importance clearly placed by the Commission on the performance of all broadcasters in meeting their commitments made in the context of applications for the transfer of ownership or control of broadcasting undertakings, no application for the full-time operation of CHYR/CHIR on a single AM frequency was filed with the Commission. Instead, in October 1988, 15 months after the transfer of assets had been approved, the Commission received the application from Blue Water for a licence to operate a new FM station at Leamington.
|
|
The London Public Hearing
|
|
At the London hearing, Blue Water stated that it had retained the services of engineers, immediately upon taking over the operation of CHYR/ CHIR, "... to review possible single frequency operation on 710 (kHz)". According to the applicant, this review brought to light a number of complications associated with the nighttime use of 710 kHz in the Leamington area that had been unknown to it at the time it purchased the station's assets. It indicated that these complications would involve the acquisition of property adjacent to the present antenna site on which to erect an additional transmitting tower, and the need to negotiate with the owners of CKVM Ville Marie, Quebec with respect to compensation for potential interference to the CKVM signal. The applicant also stated that a nighttime signal on 710 kHz at Leamington would, itself, be affected by interference created by the operations of a high-power Cuban radio station. Blue Water added:
|
|
We took all of these elements into account and determined that in order to provide service to residents of Essex County comparable to CHYR's daytime service, transfer of the station to 96.7 FM was the answer.
|
|
The applicant also stated that the recent construction in the vicinity of the CHYR/CHIR antenna of a new microwave and cellular telephone transmission tower by Cantel has resulted in re-radiation problems affecting the CHYR/CHIR signal pattern. According to Blue Water, denial of the current FM proposal will likely require that the Cantel tower be de-tuned, and the CHYR/CHIR antenna system be re-proofed, at considerable cost.
|
|
Blue Water's proposal for a new FM radio station at Leamington was opposed in interventions presented at the hearing by Bea-Ver Communications Inc., licensee of CKSY-FM Chatham, and by CHUM Limited, licensee of CKWW and CIMX-FM Windsor. Both intervenors expressed concern that the proposed FM service would, to a significant degree, duplicate the type of programming they provide in their respective markets and could jeopardize their ability to provide these services, particularly given the current state of the regional economy in southwestern Ontario.
|
|
In response, Blue Water argued that the "unique" nature of its program service would ensure that any increase in the size of the audience of the proposed FM station over that currently enjoyed by CHYR/CHIR would not come at the expense of other Canadian broadcasters.
|
|
Blue Water further noted that, in keeping with the regulatory and policy requirements for FM radio, and under the commitments set out in its FM Promise of Performance, the levels of enrichment, foreground and mosaic programming on the proposed FM station would be considerably greater than those normally found in the schedule of an AM station. The Promise of Performance filed by Blue Water specified, as minimum commitments, a level of 11.3% for foreground programming and 43.5% for foreground and mosaic programming combined.
|
|
At the hearing the Commission discussed with Blue Water the fact that a substantial overlap would exist between the market to be served by the proposed Leamington FM station and that served by CFCO Chatham. CFCO is owned by Key Radio Limited, the applicant's parent company. The Commission notes that, given this ownership association and the market overlap that would exist, any licence issued for the operation of the proposed FM station would necessarily be a joint FM licence under the Radio Regulations, 1986 (the regulations), with the attendant responsibilities for the provision of a level of 15% foreground programming and a level of 50% combined foreground and mosaic. This fact was acknowledged by Blue Water, who requested at the hearing that its application be amended accordingly to reflect commitments to these higher levels of 15% and 50%. Both of the appearing intervenors, however, objected to the proposed amendments. The Commission, for its part, reserved its determination regarding their acceptability.
|
|
The Commission's Decision
|
|
a) Application for an FM Licence
b)
The Commission's decision, as stated at the outset, is to deny the application by Blue Water for a licence to operate a new FM station at Leamington. The Commission considered this application against the background of the applicant's firm commitment, accepted as an unequivocal benefit associated with the transfer of the station's assets in 1987, that it would apply without delay for authority to operate CHYR/ CHIR on a single AM frequency. At the heart of the Commission's concern in this matter is the applicant's failure to discharge this commitment. Rather than proceed towards implementation of the single AM frequency solution, one that had been portrayed as being well in hand in 1987, the applicant elected to conduct what it termed a "review" of the single AM frequency operation.
|
|
Based upon the available evidence, the Commission is not satisfied that this review was as thorough as it should have been. Moreover, while Blue Water stated at the hearing that, so far as it was aware, the single AM frequency solution remained available to it, the Commission is not convinced that the applicant has put forth sufficient effort in pursuit of this solution. Blue Water stated, for example, that it has made no attempt to enter into negotiations with the licensee of CKVM Ville Marie regarding compensation in respect of technical interference that might be created for CKVM by the nighttime use of 710 kHz at Leamington.
|
|
There was a further lack of precision in the applicant's estimate of the costs of continuing to operate CHYR/CHIR as an AM undertaking; specifically, it remains unclear as to what party would bear responsibility for absorbing the costs of overcoming any technical problems caused by Cantel's newly-constructed cellular telephone transmission tower and its proximity to the CHYR/CHIR transmitter. Nor, in the Commission's view, did the applicant present adequate documentation to substantiate its claim of technical interference caused by the operations of the Cuban station.
|
|
For these reasons, the Commission has concluded that it would be premature for it to endorse the proposed shift to the FM band as being the only or the best solution to the technical limitations affecting the present operations of CHYR/CHIR, and has denied the application accordingly.
|
|
With respect to the amendments that Blue Water requested be made to its application at the hearing, the Commission notes that, in light of the FM policy requirement that no more than 50% of an FM licensee's foreground commitment be met by religious or play-by-play sports programming, the increased levels of 15% for foreground programming and 50% for foreground and mosaic combined would have required the applicant to produce or obtain approximately 4 hours more foreground programming per week than the amount specified in the application. Moreover, this additional programming would necessarily be exclusive of religious and play-by-play sports programming.
|
|
When questioned at the hearing as to how the requirements for increased foreground programming would be met, Blue Water suggested that the responsibilities of the station's existing staff would simply be expanded. Although the applicant failed to explain, even in general terms, how these additional programs would be produced, the Commission notes that its denial of the FM application for the reasons stated earlier renders any ruling on the acceptability of the proposed amendments unnecessary.
|
|
b) Application for the Licence Renewal of CHYR/CHIR
|
|
The Commission's decision to renew the licence for CHYR/CHIR for a period of three years only is based on the applicant's failure to honour an important commitment accepted by the Commission as one of the benefits of the transfer of the station's assets in 1987.
|
|
The Commission expects Blue Water, without delay, to enter into consultations with it and the Department of Communications (DOC) with a view to finding a long-term solution to the technical restrictions affecting the nighttime operation of CHYR/CHIR on 730 kHz. Further, the Commission expects Blue Water to file a report within six months of the date of this decision on its plans to resolve this problem. The DOC has advised the Commission that it is prepared to renew the Broadcasting Certificate for a period of 12 months only, expiring 30 September 1991. With respect to the operation of this undertaking beyond this period, the Commission draws the licensee's attention to paragraph 13(1)(b) of the Broadcasting Act pertaining to the technical certification of broadcasting undertakings and to subsection 13(2) which provides that any broadcasting licence issued, amended or renewed in contravention of section 13 is of no force or effect.
|
|
Subsections 8(5) and 8(6) of the regulations require each licensee to retain and furnish to the Commission upon request "a clear and intelligible tape recording or other exact copy of all matter broadcast" for a period of at least four weeks from the date of broadcast.
|
|
In this regard, the Commission requested the station's logger tapes of the programs broadcast on 5 April 1989. In analyzing the logger tapes submitted for the date in question the Commission found that tapes covering a period of approximately seven hours were missing. The Commission, however, did not encounter any similar problems in a second analysis conducted on logger tapes of the programs broadcast on 23 April 1989.
|
|
While the Commission notes the licensee's assurance that it has taken concrete measures to ensure that its logger tape equipment is being operated in compliance with the regulations, the Commission reiterates the importance of adhering to the regulations at all times and will monitor closely the licensee's performance in this regard during the next licence term.Regarding Blue Water's commitments for the provision of support for Canadian talent, the Commission notes that these are identical to those contained in its licence application for a new FM station, and reflect no change from the commitments made at the time the Leamington and Sarnia stations were purchased by the applicant in 1987. CHYR/CHIR's commitments represent direct annual expenditures of as little as $1,640, depending on the station's profitability.
|
|
The Commission considers Blue Water's commitments to be minimal, particularly given the substantial financial resources of Maclean Hunter Limited. The Commission reaffirms the importance it attaches to the development of Canadian talent, and therefore encourages Blue Water to increase its financial contributions in this area during the new licence term, and to develop new initiatives for the support, development and on-air exposure of local and regional talent, distinct from those made on behalf of its Sarnia radio stations.
|
|
It is a condition of licence that the licensee adhere to the Canadian Association of Broadcasters' (CAB) self-regulatory guidelines on sex-role stereotyping, as amended from time to time and approved by the Commission.
|
|
It is also a condition of licence that the licensee adhere to the provisions of the CAB's Broadcast Code for Advertising to Children, as amended from time to time and approved by the Commission.
|
|
Rosemary Chisholm
Acting Secretary General
|
|
|