Public Notice CRTC 1990-89

Ottawa, 20 September 1990

Public Notice CRTC 1990-89


Related Documents: "The 1980's: A Decade of Diversity" (Report of the Committee on Extension of Service to Northern and Remote Communities, July 1980); "Northern Native Broadcasting" Public Notice CRTC 1985-274 dated 19 December 1985; "CRTC Action Committee on Northern Native Broadcasting" Public Notice CRTC 1986-75 dated 27 March 1986; "Review of Northern Native Broadcasting: Call for Comments" Public Notice CRTC 1989-53 dated 26 May 1989; and "Review of Native Broadcasting - A Proposed Policy" Public Notice CRTC 1990-12 dated 2 February 1990.


Following a series of public hearings in the fall of 1985, the Commission released Public Notice CRTC 1985-274 entitled "Northern Native Broadcasting", in which it addressed a number of issues relating to the distribution of aboriginal radio and television services. This policy statement was based on the principles contained in the Report of the Committee on Extension of Service to Northern and Remote Communities (The Therrien Report) and, together, they have formed the foundation for Commission policy. In Public Notice CRTC 1989-53 entitled "Review of Northern Native Broadcasting: Call for Comments", the Commission announced that it intended to update its regulatory approach to aboriginal broadcasting so as to reflect the evolving role of this important segment of the broadcasting system and to articulate and clarify the specific objectives related thereto.

Based on information gathered through that call for comments, the Commission released Public Notice CRTC 1990-12 dated 2 February 1990 and entitled "Review of Native Broadcasting - A Proposed Policy". In that notice, the Commission set out its position with respect to what would constitute appropriate and workable definitions of a native undertaking, a native program and native music. It proposed classes of licence for aboriginal community radio stations, and provided a framework for advertising activity and Promises of Performance. It also addressed the development of native music and the resolution of conflicts between aboriginal and conventional broadcasters. Finally, the Commission indicated that it wished to move away from the "northern" focus present in the old policy, with a view to encouraging the continued development of native broadcasting in all regions of the country.

The deadline for public comment on the proposed policy was extended from 2 April 1990 to 1 June 1990 to allow native broadcasters sufficient time to adjust their submissions to reflect the consequential effects of the reductions in government funding to aboriginal broadcasters resulting from the February federal budget.

Regulatory Framework for Aboriginal Broadcasting

1. Role and Objectives

Although aboriginal broadcasting in Canada began in the 1960's, its development remained slow until the federal government established the Northern Native Broadcast Access Program (NNBAP) in 1983.

Today, thirteen regional native communications societies funded by the NNBAP employ over 380 personnel and together produce an average of 315 hours per week of radio programming and 12 hours per week of television. In addition, dozens of community radio stations have been established to distribute the network programs of the regional societies while providing a complementary local service.

It is clear that the NNBAP funding program has become a significant factor in facilitating the provision of valuable broadcasting services to aboriginal audiences. These services have taken on a role akin to other publicly-mandated services, such as the CBC, in that they deliver a much-needed first level of service, often in aboriginal languages and unavailable from the private sector.

At the same time, by virtue of their dependence on public funding, native broadcasters are vulnerable to the effects of the government's restraint program. The recent funding cuts resulted in the elimination of the Native Communications Program which supported community radio, trail radio and native press. Concurrently, the NNBAP budget was reduced by sixteen percent. The overall effect of these measures was to reduce substantially the operating budgets of the thirteen NNBAP societies, some by up to twenty-five percent. As a result, a number of aboriginal broadcasters see no alternative but to pursue advertising revenue and subsequently expand their commercial orientation.

In the Commission's view, it is essential that aboriginal broadcasters receive sufficient funds to enable them to fulfill their responsibilities. Furthermore, native broadcasters should be mindful of the inherent pressures exerted on their programming and resources by the adoption of a commercial orientation.

The advent of satellite technology has had a dramatic effect on remote and isolated communities due to the wholesale importation of southern broadcasting services. Therefore, the primary role of aboriginal broadcasters is to address the specific cultural and linguistic needs of their audiences, while creating an environment in which aboriginal artists and musicians, writers and producers, can develop and flourish. In this way aboriginal broadcasters can provide an element of diversity to counter-balance and complement non-native programming sources. For its part, the Commission considers it essential that the regulatory framework within which aboriginal broadcasters operate remain flexible and adaptable to the varying circumstances of each region. Such a regulatory framework needs to be tailored to reflect the specific needs of native audiences, while remaining streamlined to minimize the regulatory burden.

The Commission recognizes that, subject to broad CRTC objectives and to statutory requirements, it is the aboriginal broadcasters themselves who are best qualified to determine and meet the needs of their audiences.

2. Definitions

In its proposed policy, the Commission set out tentative definitions of a native undertaking, a native program and native music.

A number of submissions suggested that the Commission clarify these definitions by providing one for the term "native".

In its public announcements and decisions, the Commission uses the terms native and aboriginal interchangeably, with the knowledge that the native broadcasters themselves have differing preferences for these terms.

The Commission considers that a definition of "native" should coincide with the definition of "aboriginal" as contained in the Canadian Constitution; that is, "aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada."

2.1 Definition of Native Undertaking

Currently there is no specific type of licence for native broadcasters. In its proposed policy the Commission set out a definition of a native undertaking which provided for a concise reflection of the mandate of such an undertaking.

While most submissions supported the proposed definition, commercial broadcasters and the Canadian Association of Broadcasters (CAB) recommended that it specifically address the preservation of aboriginal languages and cultures. The CAB proposed that the programming be "significantly distinct...having at least a minimum requirement of native language programming."

The Commission considers that the definition of a native undertaking should be amended to include the maintenance and development of aboriginal cultures and, where possible, the preservation of ancestral languages, as essential aspects of the role to be performed by such stations. In this context, the Commission notes that in certain regions of the country, the use of native languages has all but disappeared among some segments of the population.

The revised definition of native undertaking is 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 the native population of the region served. Its programming  can be in any native Canadian language or in eigher or both of the two official languages, but should be specifically oriented to the native population and reflect the interests and needs specific to the native audience it is licensed to serve. It has a distinct role in fostering the development of aboriginal cultures and, where possible, the preservation of ancestral languages.

The Commission intends to amend its licence application and renewal forms to include, as a new category, that of a native undertaking.

The Commission encourages the participation by aboriginal people in all aspects of the broadcasting system, including the commercial sector. The above definition reflects the current reality in which native broadcasting undertakings are confined, for the most part, to non-profit operations reflecting, to a large degree, the existence of government funding and the fact that most native broadcasters are situated in remote areas unable to sustain viable commercial undertakings. Where native Canadians wish to apply for licences to operate commercial undertakings, they will be required to meet the same obligations and expectations as other commercial broadcasters.

2.2 Definition of Native Program

In its proposed policy the Commission defined a native program as follows:

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.

This definition does not impose quotas with respect to the use of non-native language or music. Further, it recognizes that the broadcasting of native programs should not be restricted to native broadcasters, and that non-native individuals should not be prevented from making programs of interest to aboriginal people.

The CAB and individual representatives of the private radio sector expressed some concerns with the proposed definition. The CAB stated that, while it may no longer be reasonable to define a native program solely on the basis of language spoken or music played, it considers the definition too broad and suggested that it include the provision that each program be required to meet a single criterion, specifically that it serve as "a tool to enhance and preserve the culture of Canada's native people".

The Commission notes that this principle is already encompassed in the definition of native undertaking. Moreover, the Commission considers that it would be too onerous, and often inappropriate to apply it to each and every program. For example, it would be unreasonable to require or expect news programming aired by native radio stations to serve as a tool to preserve aboriginal culture.

The Commission has therefore decided to adopt, without change, the originally proposed definition of a native program set out in its proposed policy.

2.3 Definition of Native Music

The Commission had proposed to adapt the MAPL formula for the purpose of identifying those musical selections that would qualify as Canadian native music. The intended goal in identifying the quantity of Canadian native music broadcast by a licensee had been to monitor its efforts in the area of talent development and the subsequent increase in the recording and airplay of indigenous native music.

In its proposed policy the Commission noted the paucity of native musical recordings and stated that it was neither possible nor desirable to impose airplay quotas at this time.

The response of the aboriginal broadcasters to the proposed definition of native music was generally negative. They argued that a definition was unnecessary in the absence of airplay requirements. They also argued strongly that aboriginal music is not confined by political borders and that any definition would of necessity have to encompass all North American Indian music. The Inuit Broadcasting Corporation noted that, for its purposes, Inuit music is the music that emanates from the indigenous peoples of the entire Circumpolar region, including Alaska, Greenland and the USSR.

In light of these arguments, the Commission has decided not to put forward a precise definition of native music at this time. However, as noted below, the Commission is firmly of the view that aboriginal broadcasters must play an effective leading role in the development and airplay of native musical talent. This will be a major factor in assessing a licensee's proposed Promise of Performance and at subsequent licence renewals.

The Commission commends the CBC for its efforts in native talent development and is pleased to note the Corporation's intention to make its native recordings available to aboriginal broadcasters.

3. Types of Native Stations

The greatest concentration of activity in aboriginal broadcasting involves community-based radio stations in small remote locales. The Commission notes that there were in excess of 100 hundred native community radio stations 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.

Native television services have been slower to develop and, in all instances to date, the programs produced by the aboriginal television networks are distributed by either the CBC or TVOntario.

The Commission has proposed that aboriginal radio and television networks be required to complete the same application form as conventional networks.

For individual native radio stations, the Commission has established two types.

Type A: A native radio station is a Type A station 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 native radio station is a Type B station 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 radio stations make use of FM frequencies. Any new aboriginal undertakings wishing to use the AM band will assume the same mandate and operate under a regime similar to that of FM stations.

Licensees are reminded that they are subject to the requirements set out in the Radio Regulations, 1986, and the Television Regulations, 1987, including the provisions respecting logs and logger tapes.

In response to suggestions, the Commission may be willing to grant Type A status to small low-power native radio stations that, although within the contour of an adjacent urban commercial station, do not compete directly in that market. Such variances would be considered on a case-by-case basis. The proposed policy was silent on a regulatory framework for individual native television stations, since there is currently none in operation. If and when such native stations are licensed, they could be accorded the status of "remote station" as defined in the Television Regulations, 1987. This would allow for individual flexibility in the areas of Canadian programs, logs and records, and advertising material.

4. Promise of Performance

The Commission has proposed that all aboriginal radio and television networks and Type B native radio stations be required to file a Promise of Performance when applying for a new licence or licence renewal. By far the vast majority of aboriginal undertakings will be in the category of Type A native radio station, and will not be subject to this requirement.

The Commission also noted that aboriginal broadcasting is still in the developmental stage, and that unstable funding and high personnel turnover can create difficulties in maintaining full compliance with the Promises of Performance. The Commission therefore proposed that adherence to Promises of Performance not be imposed as a condition of licence at this time.

Although most submissions agreed with this approach, a few raised concerns that the Commission's policies would be unenforceable if adherence to the Promise of Performance is not made a condition of licence. On the one hand, the Commission acknowledges that, in the absence of such a condition of licence, its policies, which are designed to meet the objectives of the Broadcasting Act, could be ignored by some broadcasters. On the other hand, it believes it has arrived at a realistic policy framework with the goodwill and cooperation of all parties involved, and does not wish to impose binding requirements unless they are warranted. Accordingly, the Commission has decided not to impose a condition of licence at this time requiring substantial compliance with the Promise of Performance. However, the usual conditions of licence will continue to be imposed with respect to advertising, a thirty percent Canadian musical content requirement for radio stations, and adherence to industry codes respecting sex-role stereotyping and advertising to children.

A number of submissions requested clarification regarding those situations where a Type B native station is the main originating feed of the network. Since two separate licences would be required, one each for the station and for the network, it is apparent that both Promises of Performance would be identical, unless a split feed were installed to allow different programming to be broadcast over each undertaking.

In describing the elements of the Promise of Performance, the Commission suggested that it should include the licensee's proposed program schedule and programming policies, as well as its commitment to the development and airplay of native talent. It should also describe how the proposed programming reflects the needs and preferences of its target audience, and the specific measures taken to ensure that such programming fosters the enhancement of aboriginal languages and culture. Licensees will be required to specify their proposed hours of operation, language(s) in which programming will be broadcast, the time to be devoted to different program types and musical formats (for radio), policies on advertising, and commitments regarding the presentation, promotion and development of native talent.

The Commission intends to devise a specific Promise of Performance for aboriginal radio broadcasters, based on the above criteria.

5. Advertising

Initially, most of the NNBAP-funded communications societies did not envisage a need to pursue advertising revenue. Funding levels were frozen in 1987, however, and then substantially reduced in 1990; as a result, most aboriginal broadcasters are now of the view that they must be permitted to diversify their sources of funding if they are to maintain an acceptable level of service to their audiences.

Conversely, private broadcasters submitted that government-funded native radio stations should not be permitted to compete for the limited advertising revenues available in the markets they serve. The CAB suggested that requests by aboriginal broadcasters for authority to engage in advertising activity be examined on a case-by-case basis.

In its proposed policy, the Commission stated that:

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 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.

In the case of Type A native radio stations, the Commission has decided to remove all advertising restrictions due to the fact that there are no other commercial stations in these markets, and because the advertising potential is so limited that a maximum inventory of 250 minutes per day is well beyond the capacity of these markets to sustain.

Type B native radio stations will remain subject to the limitations outlined in the proposed policy, which permits an average of four minutes of advertising per hour per day, with a maximum of six minutes in any given hour.

The Commission has received an application from a Type B aboriginal radio station to affiliate with a private country music network service, and requesting authority to sell the commercial avails within that service. The Commission considers that such applications should be subject to public comment and considered on a case-by-case basis.

A number of submissions by aboriginal broadcasters raised the concern that the limitation of an average of four minutes per hour of advertising for Type B radio stations poses a serious restriction in that commercials are often translated from English or French for further broadcast in aboriginal languages or dialects. Thus, if a commercial is aired in English and three native languages, it must be counted four times. The broadcasters submitted that, in such circumstances, the allowable advertising quota would be rapidly consumed. They further argued that the translated versions may run fifty per cent longer than the original English version due to the grammatical structure of some aboriginal languages. The Commission agrees that, in this unique situation, the proposed advertising restrictions would impose unfair limitations on aboriginal radio broadcasters and could act as a deterrent to the broadcast of commercial messages in all the appropriate languages.

The Commission has thus decided that only the original versions of commercials in English, French or a native language should be counted for the purpose of meeting the average of four minutes per hour advertising restriction. Versions of commercials translated into aboriginal languages will not be counted.

Native television stations and networks will be required to adhere to the advertising restrictions set out in the Television Regulations, 1987, which allow for up to l2 minutes per hour of advertising.

At present, no native television broadcasters, and only a few native radio networks, operate their own distribution systems. For the most part, they have access agreements with either the CBC or TVOntario.

Over the past few years there have been discussions with the CBC to determine whether it would amend its access agreements with aboriginal broadcasters to allow them to engage in advertising activity.

The CBC has indicated that it is now prepared to agree to native television broadcasters' use of the CBC's distribution facilities to sell commercials in the native access programs, provided that the native broadcasters abide by the CBC's commercial acceptance guidelines and that they secure the necessary indemnity insurance. The Corporation further indicated that it would be willing to assist aboriginal broadcasters in obtaining group rates for such insurance coverage.

With respect to radio, the CBC indicated that it was unwilling to change its policy of prohibiting advertising in the native access programming.

TVOntario distributes the radio and television programming of the Wawatay Native Communications Society of northern Ontario. TVOntario submitted that its current access agreements do not prohibit advertising, and that "the decision to advertise or not would be Wawatay's. The authority to do so would lie between Wawatay and the Commission." The Commission is pleased to note that TVOntario does not currently restrict advertising in the native access programs.

In Public Notice CRTC 1990-l2, the Commission mistakenly characterized TVOntario's corporate underwriting activity as sponsorship revenue, and regrets this misinterpretation.

6. 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 submitted that native stations should not be permitted to compete for advertising revenue. Conversely, some submissions indicated that the onus should be on private broadcasters to substantiate any claim of financial harm caused by native broadcasters.

The Commission considers that limiting the advertising activity of Type B native radio stations to an average of four minutes per hour of commercials (in their original versions) provides adequate protection for the private commercial stations. Furthermore, the overall regulatory framework, including the requirement that native radio networks and Type B stations file Promises of Performance, further ensures that the programming of these undertakings is specifically oriented to the aboriginal population.

Any further complaints will be dealt with through the Commission's normal complaints procedure, and through the intervention process at the time of licence renewal.

7. Distribution

Each of the thirteen regional networks funded by the NNBAP is mandated to serve a large geographic area, such as Arctic Quebec, the entire Yukon Territory, northern Ontario, and so on. Few of these regional services could exist without the benefit of satellite technology.

The CBC plays a primary role by providing access to its distribution facilities to aboriginal networks in Alberta, Saskatchewan, Manitoba, Quebec and the Northwest Territories. TVOntario provides satellite distribution for the radio and television services of the Wawatay Native Communications Society in Ontario. Canadian Satellite Communications Inc. (Cancom) currently provides free audio subcarriers to native radio networks in the Yukon and MacKenzie Delta areas, and will provide two additional subcarriers pursuant to its latest licence renewal decision (Decision CRTC 90-92). In British Columbia, a number of private commercial stations have assisted in the distribution of aboriginal radio by providing free access time.

The Commission recognizes the significant contributions made by the various parties involved in providing native broadcasters with access to their distribution facilities over the past few years. In particular, the CBC's involvement in promoting and assisting native broadcasters dates back to the Corporation's earliest days in the Arctic, and to a large degree provided the impetus that sparked the imagination of aboriginal people to establish their own broadcasting services.

In its submission, the CBC suggested that it and other broadcasters involved in distributing aboriginal programming should continue to provide access time, and recommended that the Commission maintain its Access Committee to resolve conflicts respecting access and scheduling.

Finally, the Commission is pleased to note the Minister of Communications' announcement on 9 May 1990 of the government's commitment to the establishment of a dedicated northern satellite transponder, known as TVNC. This will alleviate the pressures currently imposed on the CBC's overloaded Northern Television Service, and will fulfill a longstanding dream of aboriginal television broadcasters to control the distribution of their services.

8. Conclusion

This review of aboriginal broadcasting began in 1988 with the awarding of a research study to Greg Smith and Associates, and this was followed by two separate calls for comments. The Commission extends its appreciation to all those who contributed to this review, and is gratified by the constructive and cooperative spirit in which this policy was developed.

Alain-F. Desfossés
Secretary General

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