ARCHIVED -  Public Notice CRTC 1990-12

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Public Notice

Ottawa, 2 February 1990
Public Notice CRTC 1990-12
Table of Contents
1. Background
2. Consultation
3. Objectives
4. Proposed Definitions
5. Classes of Licence
6. Promise of Performance
7. Advertising
8. Conflicts with Private
9. Development of Native Music
10. Distribution
11. Conclusion
Related Documents: "The 1980s: A Decade of Diversity" (Report of the Committee on Extension of Services to Northern and Remote Communities, July 1980); "Northern Native Broadcasting" Public Notice CRTC l984-3l0 dated l4 December 1984; "Call for Comments Respecting Northern Native Broadcasting" Public Notice CRTC l985-67 dated 27 March 1985; "Northern Native Broadcasting" Public Notice CRTC l985-274 dated 19 December 1985; "CRTC Action Committee on Northern Native Broadcasting" Public Notice l986-75 dated 27 March 1986; and "Review of Northern Native Broadcasting: Call for Comments" Public Notice CRTC l989-53 dated 26 May 1989.
In its Public Notice CRTC l989-53 entitled "Review of Northern Native Broadcasting: Call for Comments", the Commission announced its intention to undertake a review of its regulatory approach to northern native broadcasting. It posed a number of questions relating to the continued development of its native broadcasting policy.
Thirty-two submissions were received in response to the Call for Comments: eleven from native broadcasters, six representing commercial broadcasters, four from provincial and territorial governments, three from distributors of native programming (CBC, TVOntario and CANCOM), and eight others.
The Commission wishes to thank all those who filed comments; it has benefitted considerably from the information provided. In this document the Commission presents its proposed policy framework based on the material gathered to date. However, before finalizing its policy on native broadcasting, the Commission invites the public and all other interested parties to submit their views and comments on the matters dealt with in this document.
In 1980 the CRTC established the Committee on Extension of Service to Northern and Remote Communities. After holding extensive public hearings throughout the North and considering over 400 submissions, the Committee issued its report (The Therrien Report) in July 1980. In addition to making wide-ranging recommendations, the report stressed the importance of initiating special measures to ensure that the distinct linguistic and cultural needs of northern native populations are adequately met.
In March 1983 the government announced its Northern Broadcasting Policy, which included provision for a funding mechanism, the Northern Native Broadcast Access Program (NNBAP), to assist northern native communications societies in producing radio and television programming to serve the specific needs of native audiences and to counter-balance the influx via satellite of increasing amounts of southern-originated programming. The NNBAP is administered by the Department of the Secretary of State.
One of the key aspects of the Northern Broadcasting Policy was that native broadcasters should have fair access to the various distribution systems in the North and mid-Canada.
In late 1984, representations were made to the Commission that many of the native communications societies were experiencing difficulty in gaining access to northern distribution systems. As a result, on l4 December 1984, the Commission announced the formation of a Northern Native Broadcasting Committee whose mandate was to identify broadcasting-related problems experienced by the NNBAP groups (Public Notice CRTC l984-3l0).
On 27 March 1985 the Commission issued a call for comments respecting northern native broadcasting (Public Notice CRTC l985-67) in which it requested the views of interested parties on a number of distribution issues.
This process led to a series of public hearings in the Fall of 1985 and the subsequent release of Public Notice CRTC l985-274, which set out a policy framework designed to improve the quality and quantity of access by northern native broadcasters to the Canadian broadcasting system.
In the policy the Commission expressed concern about the quality of access time, and stressed that mere access to the airwaves was insufficient if programs were not accessible to the intended audiences at convenient times. The Commission announced that it was establishing an Action Committee to implement the principles of fair access, with representatives from native communication societies, private and educational broadcasters, the CBC, the CRTC and the co-ordinators of the NNBAP (Public Notice CRTC l986-75).
The Commission recognized that there was no single solution to accommodate the diverse circumstances of the various regions: a combination of public, private and community-owned stations would be required to reach all of the targeted communities.
The Commission encouraged the CBC to formulate a long-range plan that would allow increased integration of quality native-produced programming in its radio and television schedules, and agreed with the CBC that the Northern Service "could become significantly more meaningful to all residents of the North if it had the benefit of a fully dedicated satellite transponder". The Commission stated that it was essential that funds be reserved to secure such a transponder. The Commission notes that in June 1988 the government committed $l0 million over four years for an independent satellite-delivered programming distribution system to increase the availability of television programs produced by native broadcasters, as well as programs originating from the CBC Northern Service and from provincial and territorial governments, designed specifically for northern audiences.
Due in large part to the establishment of the NNBAP in 1983, native broadcasting has experienced tremendous growth in recent years. The thirteen regional native communications societies funded by the NNBAP employ over 380 personnel and together produce an average of 3l5 hours per week of radio and l3.5 hours per week of television. In addition, dozens of new community radio stations have been established to distribute the network programs of the regional societies while providing a much-needed local complementary service.
The Commission acknowledges that, despite the rapid growth of northern native broadcasting in recent years, problems still exist, particularly with respect to distribution. At the same time, new issues are emerging as native broadcasting expands into communities served by commercial broadcasters. It is the Commission's intention to establish a regulatory framework that reflects the current stage of development of native broadcasters and that provides the requisite flexibility to meet the specific requirements of native audiences.
This review was originally intended to encompass only northern native broadcasting, that is those broadcasters situated above the Hamelin Line, which is one of the funding criteria of the NNBAP. However, because the Commission wishes to encourage the continued development of native broadcasting in all regions of the country, it intends to apply its policy to all native undertakings regardless of their locale.
In 1988 the CRTC awarded a contract to Greg Smith and Associates to undertake a review of the current state of native broadcasting, to analyse the issues relating to its future development, and to consult with a wide range of interested parties including government departments and agencies, commercial and educational broadcasters, aboriginal broadcasters and the CBC.
This study has proven to be a valuable source of information on the subject of native broadcasting. It also has provided a focus to some of the issues and questions raised in the Commission's 26 May 1989 call for comments (Public Notice CRTC l989-53). Based on all the information gathered and the broad range of views expressed through the consultative and public processes to this point, the Commission proposes to adopt the following policy.
The Commission considers it essential that native broadcasters operate within a framework that is flexible and adaptable to the varying circumstances from region to region, tailored to reflect the specific needs of native audiences, and streamlined to require the minimum regulatory burden.
The Commission recognizes that, subject to broad CRTC objectives and to statutory requirements, native broadcasters themselves are the most qualified to determine the needs of their audiences.
While to date native broadcasting has been characterized by its non-profit feature, the Commission encourages native entrepreneurs to participate in all aspects of the broadcasting system, including commercial undertakings. The Commission strongly supports the principle that native broadcasters should take their rightful place within the Canadian broadcasting system so that they can further contribute to the enhancement and protection of their languages and cultures through radio and television programs, and create an environment where aboriginal artists and musicians, writers and producers, can develop and flourish.
The thirteen regional networks funded through the NNBAP should play a key role in meeting these objectives. It is therefore appropriate that each establish its specific plans and objectives in the form of a promise of performance at the time of their next licence renewal. In this way audiences will be able to comment on a licensee's performance by making representations to the Commission at the time of licence renewal. The Commission fully supports the view of the Wawatay Native Communications Society, that an essential objective of the policy should be "to ensure that native broadcasting organizations respond to the needs of native audiences".
4.Proposed Definitions
Fundamental to any regulatory framework is the need to ensure that the terminology is both specific and appropriate to the circumstances. In its call for comments, the Commission solicited suggestions for the definition of native undertaking, native program, and native music.
i) Definition of Native Undertaking
At the present time there is no specific class of licence for a native undertaking. The Commission intends to amend its licence application and renewal forms to include a category for native undertakings. Hence in the future, as each native station or network licence is renewed, it will identify itself as a native undertaking. The proposed definition is set out as follows:
 Native Undertaking: This undertaking is characterized by its ownership, programming and target audience. It is owned and controlled by a non-profit organization whose structure provides for board membership by, and whose programming reflects the needs and preferences of, the native population of the region served. Its programming can be in any native Canadian language or the two official languages, but should be specifically oriented to the native population, and reflect the interests and special needs of the native audience it is licensed to serve.
As previously noted, the Commission encourages native participation in all aspects of the broadcasting system, including the commercial sector. The above definition reflects the current reality that native broadcasting is confined to the non-profit mode of operation, due to a large degree to the existence of government funding and the fact that most native broadcasters are situated in remote areas unable of sustaining viable commercial undertakings. Where native Canadians wish to apply for licences to operate a commercial undertaking, they will be required to meet the same obligations and expectations as other commercial broadcasters.
ii)Definition of Native Program
A number of native broadcasters argued that any definition of native program should not be determined solely on the basis of language spoken or music played. Private broadcasters generally consider that a native program should comprise a high percentage of spoken word in a native language or dialect, and that native radio undertakings should be partially or totally restricted to the use of native music.
The Commission notes that while native people in some regions of Canada have succeeded in retaining the use of their languages, in other regions they have been less successful.
Moreover in several areas where more than one native language or dialect is spoken, there is a need at times for programming in a common tongue.
It is therefore necessary for some native broadcasters to use English or French, as well as their traditional languages, to reach all of their intended audience.
The following definition accommodates the varying degree of traditional language usage.
 Native Program: A program in any language directed specifically towards a distinct native audience, or a program about any aspect of the life, interests or culture of Canada's native people.
Under this definition, the broadcasting of native programs would not be restricted to native broadcasters, and non-native individuals would not be restricted from making programs of interest to native Canadians.
iii)Definition of Native Music
A number of commercial broadcasters maintained that native radio broadcasters should not play mainstream popular music, and should generally be confined to the airing of native music. The native broadcasters are unanimously opposed to any kind of quota system, arguing that native culture is not defined by "beads and drumbeats". Moreover for many native Canadians, modern popular music, particularly country and western music, has become a part of their culture and heritage.
Given the serious paucity of native musical recordings, and the role contemporary Western music plays in the lives of many native Canadians, it is neither possible nor desirable to impose quotas at this time. However, the Commission wishes to encourage a significant increase in both the recording of native artists and their airplay, and is proposing to adopt the following definition, which is an adaptation of the existing MAPL formula.
 A musical selection is a Canadian native selection where it fulfills two or more of the following criteria:
- the music or lyrics are performed principally by a Canadian native;
- the music is composed by a Canadian native;
- the lyrics are written by a Canadian native; and
- the musical selection consists of a live performance by a Canadian native that is
i) recorded wholly in Canada, or
ii) performed wholly in Canada and broadcast live in Canada.
This definition would guide native and non-native broadcasters in determining the airplay of native music at the time of application for licence or renewal.
5.Classes of Licence
The greatest concentration of activity in native broadcasting involves community-based radio stations in small remote locales. The Smith study estimated that between l40 and l60 native community radio stations were in operation in 1988, and that more than two-thirds of these were receiving and rebroadcasting native language radio programming produced by the regional NNBAP-funded networks.
Television has been slower in development, and in all instances to date the programs produced by the native television networks are distributed by either the CBC or TVOntario.
Most submissions to the call for comments suggested that the CRTC adopt a more precise regulatory framework for native undertakings. Many suggested that for native radio stations, the Commission should adopt an approach similar to that outlined in its Review of Community Radio (Public Notice CRTC 1985-l94).
At the network level, the Commission is proposing that native radio and television networks be required to complete the same application form as conventional networks. As noted previously, these forms will be amended to include the category of native undertaking.
As for native community radio stations, the Commission is proposing to create the following categories of native community radio stations within its Special FM class of licence.
 Type A: A Special FM licence for native community radio is a Type A licence if, at the time the licence is issued or renewed, no other commercial AM or FM radio licence to operate a station in all or any part of the same market, is in force.
 Type B: A Special FM licence for native community radio is a Type B licence if, at the time the licence is issued or renewed, at least one other commercial AM or FM radio licence to operate a station in all or any part of the same market, is in force.
Currently, all native community stations make use of FM frequencies. All new AM native community stations must assume the same role and mandate as that set out for FM stations.
6.Promise of Performance
In its call for comments the Commission solicited responses to the question whether native broadcasters should be required to file a promise of performance with their applications, and if so, to which types of undertakings this requirement should apply.
The responses were largely in favour of adopting a promise of performance for certain licenses. The majority of native broadcasters were of the view that many of the networks and larger stations had reached a point of development where the filing of a promise of performance would pose no serious problems.
Private radio broadcasters proposed that all native radio stations operating in a community where they co-exist with a commercial radio station, be required to file a detailed promise of performance and that substantial compliance be imposed as a condition of licence.
The Commission is proposing that all native radio and television networks, and Type B native community radio stations, be required to file a promise of performance and (in the case of radio) a description of programming when applying for a new licence or a renewal. By far the vast majority of native undertakings will be classified as Type A and will not be subject to this requirement. Although the community radio policy only exempts low-power Type A stations from filing a promise of performance, the Commission intends to exempt all Type A native community radio stations regardless of the transmitter power, because it is evident that higher power transmission is sometimes required in northern and remote areas to reach a population that engages in seasonal hunting and trapping activities.
Although the Commission acknowledges that many native broadcasters have attained a high level of professionalism, it also realizes that unstable funding and a high turnover of personnel could result in difficulties in maintaining full compliance with a promise of performance. The Commission is therefore proposing that the promise of performance not be imposed as a condition of licence at this time.
The promise of performance should include the licensee's plans regarding its program schedule and policies as well as its commitment to the development of native talent. It should describe how its programming reflects the needs and preferences of its target audience, and the specific measures taken to ensure that it fosters the enhancement of aboriginal languages and cultures. Licensees will be required to specify their proposed hours of programming, language(s) of programming, the time devoted to different program types and musical formats (according to the medium involved), policies on advertising, and commitments regarding the presentation, promotion and development of native talent.
The issue of advertising by native broadcasters is one that relates primarily to the emerging competitive dynamics where native and non-native radio stations operate in the same community. At present there are no specific advertising restrictions placed on native broadcasters beyond those contained in the Radio Regulations, 1986 and the Television Regulations, 1987.
Submissions from the native broadcasters indicate that, initially, most of the NNBAP-funded communications societies did not envisage a need to pursue advertising revenue. However, due in part to the fact that funding levels have been frozen for three years, most native broadcasters are now of the view that they must supplement their traditional sources of revenue.
Conversely, private broadcasters submit that government-funded native radio stations should not infringe on the limited commercial potential of the markets in which they operate.
In the Commission's view, there is no justification for the placing of commercial restrictions or distinctions on native broadcasters as such. The Commission concurs with the majority of submissions which favour treating native community radio stations in the same manner as other community radio licensees. Therefore, the Commission is proposing that Type A native community radio stations be permitted to broadcast up to 250 minutes of advertising a day, up to a maximum of l,500 minutes per week, for stations broadcasting between 6:00 a.m. and midnight seven days a week, otherwise 20% of a station's total broadcasting time. Type B native community radio stations will be permitted to broadcast an average of four minutes of advertising per hour per day, with a maximum of six minutes in any single hour. These advertising restrictions will be imposed as a condition of licence on each native community radio station. The Radio Regulations, 1986 do not impose commercial restrictions at the network level.
With respect to native television networks, the Commission is proposing that the same l2 minute per hour limitation apply as for conventional television networks, as stipulated in the Television Regulations, 1987.
Native television broadcasters do not yet operate their own distribution systems. Instead they have access agreements with the CBC and TVOntario. As these agreements currently prohibit the native broadcasters from engaging in any advertising activity, they have asked the CRTC to intervene on their behalf to persuade CBC and TVOntario to eliminate these restrictions.
This issue was discussed at the October 1986 public hearings of the renewal of the Corporation's television network licences. At that time the CBC stated:
 It is a matter that we are prepared to review with respect to television, given that CBC television is a commercial-carrying medium. We are very reluctant to consider it for radio, but we would under certain circumstances.
In its 23 February 1987 Decision CRTC 87-l40 renewing the CBC television network licences, the Commission stated that it:
 ... considers that additional advertising revenue could augment and strengthen the financial base of native broadcasting societies, and is encouraged by the Corporation's willingness to reconsider its policies on this matter.
The Commission is unaware of any further action by the CBC to amend its access agreements. In response to the call for comments, the Corporation indicated that:
 With regard to radio, the Corporation continues to believe that the nature of its "commercial-free" radio service would be inappropriately disrupted should radio access
 programming include commercial advertising. Moreover, a condition of the CBC's radio network and regional radio stations prohibits the broadcast of commercials. For these reasons, the Corporation is not prepared to change its policy in this area.
 In the case of television, the Corporation agrees in principle with Native Broadcasters' use of its distribution facilities to sell advertising in the programming they provide during access time scheduled on television. It seems clear, however, that authorization to Native broadcasters to carry commercials in access periods compounds the problem of the licensee's ultimate legal responsibility for this programming content.
While the Commission acknowledges the ultimate legal responsibility of the host broadcaster for native language access programming, it considers that this responsibility has already been accepted and agreed to with respect to the program content of the access programming and that there would be no significant additional burden on the CBC in extending its access principles to accommodate advertising. Further, the Commission would expect that the native broadcasters would fully abide by the Corporation's advertising codes and policies.
Although TVOntario does not broadcast conventional advertising material, it does accept sponsorship revenue. The Commission encourages TVOntario to extend its policies on sponsorship to its native access programming.
8.  Conflicts with Private Broadcasters
Private radio stations in Whitehorse and Yellowknife have raised concerns that the native broadcasters in their communities have caused significant audience erosion because they broadcast mainstream country or rock music. They also consider that native stations should not be permitted to compete for advertising revenue. Conversely, some submissions indicate that the onus should be on the private station to substantiate any claim of financial harm caused by native broadcasters.
The Commission considers that its proposed policy of limiting the advertising activity of Type B stations to an average of four minutes per hour provides adequate protection for the private commercial stations. The requirement that native stations file a promise of performance will further ensure that the programming of these undertakings be specifically oriented to the native population.
Any future complaints will be dealt with through the Commission's normal complaints procedure, and through the intervention process at the time of a licence renewal.
9.Development of Native Music
Most respondents acknowledged the serious lack of recordings by native artists and suggested that the federal government establish a new funding program to foster native talent development.
The Commission considers that a useful first step would be the establishment of an archival depository for native recordings, and suggests that the National Aboriginal Communications Society could undertake this task at little or no additional cost.
A number of native broadcasters indicated that they have provided studio time and technical assistance to budding artists in their regions, but do not have the necessary funds to mass-produce records or tapes, or otherwise broaden the exposure of these artists beyond their own communities.
The Commission will expect native licensees to address the issue of talent development in their promise of performance. Although the Commission is not proposing to establish a quota system for the airplay of native artists, it expects native broadcasters to play a major role in this area.
The CBC Northern Service produces a limited number of native recordings each year, and the Commission encourages the Corporation to share these recordings with the native broadcasters.
It is evident from the submissions by native broadcasters that they continue to encounter problems in the delivery of their programs to native audiences. Unfortunately, this situation will likely continue until such time as they obtain their own distribution systems. The government's 1983 Northern Broadcasting Policy allowed for the creation of the NNBAP as a production fund. It was assumed that native broadcasters would have "fair access" to existing private and public distribution systems in the North.
When, in 1985 the CRTC held public hearings into this "fair access" issue, it became apparent at that time that only the CBC adequately covered the Northern regions (i.e. above the Hamelin Line). The CBC has been unable to accommodate all the demands on its regional distribution systems for a number of reasons, but especially due to the inherent limitations of their technical infrastructures. As the CBC Northern Service does not have its own dedicated satellite transponder, the North receives its programming via the same transponders that feed southern locations. As a result, native programs are accorded poor time slots and are frequently pre-empted.
Following the 1985 public hearings the CRTC issued Public Notice l985-274 in which it encouraged the CBC to make every effort to accommodate native access, while recognizing that the existing distribution systems were inadequate. The Commission again reiterated that a dedicated northern transponder was an essential means of resolving thisproblem. It also created an internal Action Committee to respond to complaints respecting fair access.
In 1988 the federal government announced that it would fund a dedicated northern transponder to provide improved service to northern audiences. A consortium called Television Northern Canada (TVNC) was formed, consisting of six native communications societies, the two territorial governments and the CBC.
In the view of the Commission, the fulfillment of this promise of a dedicated northern transponder is essential to the success of the NNBAP program. The distribution problems encountered by the native broadcasters are primarily the result of a lack of funds to secure the necessary distribution system.
The principles embodied in this proposed policy are meant to ensure that native broadcasting occupies its rightful place as an essential component of the Canadian broadcasting system.
Any comments on the proposals must be sent to the Secretary General, CRTC, Ottawa, KlA ON2, by 2 April 1990.
Fernand Bélisle
Secretary General

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