ARCHIVED -  Public Notice CRTC 1992-5

Public Notice

Ottawa, 17 January 1992

Public Notice CRTC 1992-5

PROPOSED EXEMPTIONS FROM LICENSING REQUIREMENTS

In Public Notice CRTC 1991-63, dated 19 June 1991, the Commission announced that, in view of the powers given it under subsection 9(4) of the new Broadcasting Act, it was examining the possibility of granting exemptions from licensing requirements to persons who carry on broadcasting undertakings of certain classes, in addition to those exempted under the old legislation -- Master Antenna Television (MATV) undertakings and resource development installation undertakings. Under the new Broadcasting Act, the power of exemption has been widened to permit the Commission to exempt persons who carry on broadcasting undertakings of any class from the requirement to obtain a licence. The Commission hereby announces for public comment its proposals on this matter.

A.  INTRODUCTION: EXEMPTION POWERS UNDER THE NEW ACT.

Subsection 9(4) of the new Broadcasting Act states:

 The Commission shall, by order, on such terms and conditions as it deems appropriate, exempt persons who carry on broadcasting  undertakings of any class specified in the order from any or all of the requirements of this Part or of a regulation made under this Part where the Commission is satisfied that compliance with those requirements will not contribute in a material manner to the implementation of the broadcasting policy set out in subsection 3(1).

The Commission has already exercized its broader exemption power under the new Broadcasting Act by exempting persons carrying on certain shortwave broadcasting undertakings (Public Notice CRTC 1991-105). In Public Notice CRTC 1992-6 of today's date, the Commission has issued a further order that exempts from licensing requirements persons carrying on undertakings that provide coverage of the proceedings of the House of Commons and provincial or territorial legislatures to distribution undertakings.

Subject to the comments received in response to this notice, the Commission proposes to exempt from licensing requirements, persons carrying on broadcasting undertakings of the classes identified herein on the grounds that, for reasons of their limited audience reach, limited duration of operation, or for other considerations discussed in this notice, such licensing would not materially contribute to the achievement of the objectives of the Broadcasting Act.

The Commission may revoke an exemption previously granted, should this be deemed necessary or appropriate, and may propose certain additional exemptions in the future.

B.  CLASSES OF LICENCES WHOSE OPERATORS ARE PROPOSED FOR EXEMPTION

1. Certain Low-Power Radio Undertakings

Low-power radio programming and radiocommunication distribution undertakings are those operating at 50 watts Effective Radiated Power (ERP) or less in the case of FM, and less than 100 watts of transmitter power in the case of AM. Low-power radio undertakings operate in the AM and FM bands (AM: 525 to 1705 kHz; FM: 88 to 108 MHz.)

While there is an allotment plan established by the Department of Communications (DOC) for FM, it does not extend to low-power FM stations. These stations are given assignments wherever feasible within the available spectrum after due protection has been given to existing assignments and regular FM allotments. There is no allotment plan for either high- or low-power AM stations.

Frequencies approved by the DOC for low-power AM and FM undertakings are unprotected, which means that if an application for a licence to operate a regular AM or FM station in the vicinity on the same frequency were approved, the low-power station affected would have to change to another frequency, or cease operation. The only protection low-power undertakings now enjoy is against interference from any future low-power AM or FM undertakings that may be established in their vicinity. Except for community, native and student radio undertakings, the impact of low-power radio in the context of the Canadian broadcasting system is limited, due to the fact that its programming tends to be targeted at very small audiences.

In the Commission's view, low-power radio therefore lends itself to consideration for exemption from licensing and regulation. At this early stage, however, the Commission considers it prudent to begin with consideration of only those types of low-power undertakings that present the clearest and least controversial grounds for exemption.

It is proposed that the exemptions would apply only to persons carrying on undertakings that meet the general and specific criteria set out below:

Proposed General Criteria for the Exemption of Persons Carrying on Certain Low-power Radio Undertakings

The undertaking must be one that

* the Commission would not be prohibited from licensing pursuant to any Direction to the Commission by the Governor-in-Council;

* operates at a power of 50 watts ERP or less for FM; and less than 100 watts transmitter power for AM;

* does not broadcast any programming that contravenes the Radio Regulations, 1986; * except insofar as it rebroadcasts the programming of an undertaking licensed by the Commission, does not broadcast programming that is religious or political in nature; and

* has been issued a broadcasting certificate by the Department of Communications (DOC), unless the DOC does not require one.

a) Proposed Specific Criteria for the Exemption of Persons Carrying on Temporary Resource Development Distribution Undertakings

Among those radiocommunication distribution undertakings formerly termed "rebroadcasters", a distinction can be made between "regular" undertakings that, once licensed, are intended to broadcast programming indefinitely, and those whose operations are "temporary". The latter are to be called Temporary Resource Development Distribution Undertakings, and include stations serving work camps that operate only during the term of a specific construction, logging or similar project.

Temporary Resource Development Distribution Undertakings are broadcasting undertakings that operate in remote areas, and distribute the programming of another licensed station. The Commission proposes to exempt persons carrying on such undertakings from the requirement to hold a licence, provided they satisfy the general criteria outlined above and the following specific criteria: The undertaking must be one that

* is temporary in nature and serves the population of a work camp or construction site that is not intended as a permanent habitation;

* ceases operation upon completion of the work project;

* is operated by or on behalf of the person who owns or leases all of the property on which the undertaking is situated and who supplies the population of the work camp or construction site served by the undertaking with such common amenities as food and shelter;

* distributes without curtailment or alteration the signal of a Canadian station and originates no programming locally; and

* operates in an area that is not within the 0.5 millivolt per metre (mV/m) contour of an AM or FM station licensed by the Commission, broadcasting in the same language as the undertaking.

b) Proposed Specific Criteria for the Exemption of Persons Carrying on Special Events Programming Undertakings

Special Events Programming Undertakings are generally established for a specific period to provide coverage of recognized sports, cultural, or touristic events. They are on air only for the period of the event (typically from one day to four weeks), although the event may occur annually . The content may consist of live performances (music festivals), descriptions of live events (sports events), or information regarding scheduling, time table and traffic for the benefit of audiences participating in these events.

The Commission proposes to exempt persons carrying on such undertakings from the requirement to hold a licence provided they meet the general criteria outlined earlier and the following specific criteria:

The undertaking must be one that

* originates all of its programming entirely from the location of the event;

* does not distribute the programming of another undertaking;

* operates as ancillary to, and for the purpose of facilitating the enjoyment of, a special event;

* restricts its programming to the specific recognized sports, cultural or touristic event and does not duplicate the local or regional programming service of any licensed radio or television undertaking;

* does not utilize the frequency outside of a single period consisting of no more than 28 consecutive days in any calendar year; and

* limits its on-air commercial activity to sponsorship identification or sponsor mention as defined in Appendix 2 of Public Notice CRTC 1990-111 entitled "An FM Policy for the Nineties".

c) Proposed Specific Criteria for the Exemption of Persons Carrying on Low-Power Announcement Service (LPAS) Undertakings

LPAS undertakings generally fall into two categories: those whose entire message is commercial and is intended as a sales aid; and those used to provide tourist information at heritage sites.

In Decision CRTC 88-99 approving applications by Talking Signs Inc., the Commission stated that it was "...satisfied that these... undertakings will reach only very small audiences and that the type of advertising that they will broadcast is different from that carried by conventional stations."

Because the commercial aspect of services with limited coverage, as defined below, does not pose a threat to conventional broadcasters, the Commission proposes to exempt persons carrying on such undertakings from the requirement to hold a broadcasting licence provided they meet the general criteria outlined previously and the following specific criteria:

The undertaking must be one that

* does not broadcast programming that is religious or political in nature;

* does not rebroadcast the programming of another undertaking;

* if commercially-oriented, does not broadcast the same message on more than one transmitter, and does not constitute, nor operate as part of, a network operation; and

* at maximum power output of the transmitter into its antenna and without modulation, does not produce a field strength, as measured at a distance of 30 metres, of more than:

- 0.25 mV/m for AM, and
- 0.10 mV/m for FM.

2.  Temporary Networks

"Networks" occur and must be licensed when an undertaking delegates control over all or any part of its programs or program schedule. The new Broadcasting Act anticipates circumstances when a network might be operated on a temporary basis only. Temporary network licences are granted for a period not exceeding 60 days.

The processing of applications for temporary network licences is very streamlined and approvals are generally granted by the Commission in a routine fashion. Given the lack of problems encountered with this approach, the Commission considers this to be an area where certain exemptions would be appropriate.

The Commission is therefore proposing to exempt from licensing requirements persons carrying on certain types of temporary network undertakings: those whose operation is of very short duration; and those that distribute programming that is non-commercial in nature or provide coverage of a non-profit event.

The exemptions would apply only as long as the general and specific criteria indicated below are met. Proposed General Criteria for the Exemption of Persons Carrying on Temporary Network Undertakings

For all recommended classes of undertakings outlined below, the following general exemption criteria would apply:

The undertaking must be one that

* the Commission would not be prohibited from licensing pursuant to any Direction to the Commission by the Governor-in-Council;

* does not broadcast any programming that contravenes the Radio Regulations, 1986; the Television Regulations, 1987; or the Cable Television Regulations, 1986, as applicable; and

* does not broadcast programming that is religious or political in nature other than that contained in the programming of an undertaking licensed by the Commission.

a) Proposed Specific Criteria for the Exemption of Persons Carrying on Temporary Network Undertakings - Special Event Type 1

This, the first of two sets of specific criteria, would apply to networks covering unforeseen events of relatively short duration.

The events could be of a commercial, for-profit nature, and the coverage could include commercial messages, but would have to begin and conclude within a 24-hour period. An example of such an event would be a one-time musical event, such as the Live-Aid concert. Regularly scheduled programs, concerts or events, or sports play-off series, for instance, would not qualify.

Unforeseen events that could be given coverage by such a temporary network would also include public emergencies such as environmental disasters.

This exemption would apply to persons operating network undertakings consisting of radio, television or cable undertakings, or any combination thereof, provided they meet the above-noted general criteria and the following specific criteria:

The undertaking must be one that either

* does not provide program coverage over a period of more than 24 consecutive hours and the program coverage is a one-time, non-recurring broadcast; or

* provides program coverage of unforeseen public emergencies over a period of not more than seven consecutive days.

b) Proposed Specific Criteria for the Exemption of Persons Carrying on Temporary Network Undertakings - Special Event Type 2

The second set of specific criteria concerns temporary network undertakings providing coverage of special, not-for-profit events of limited duration taking place in Canada. Such events would include the Montréal International Jazz Festival or The Alberta Summer Games. Coverage of these events has in the past been, and under the terms of this exemption would continue to be, intended for distribution by cable licensees, using community programming channels or special programming channels. Under these proposals, licences for networks providing coverage of such primarily non-Canadian events as the Jerry Lewis Muscular Dystrophy Telethon and the Children's Miracle Network would still be required. Should the Commission, pursuant to this public process, determine to exempt persons carrying on such temporary network undertakings, it intends to then issue for public comment a proposed amendment to the cable television regulations that would permit cable licensees to distribute such programming without prior Commission approval.

This exemption would apply to persons carrying on any temporary network undertaking distributing programming to cable undertakings, provided the network meets the above-noted general criteria and the following specific criteria:

The undertaking must be one that

* provides non-commercial coverage of a Canadian event that is, itself, non-commercial, and not-for-profit in nature. Although those events, such as telethons, may involve fundraising, conventional commercial activity is not permitted and sponsorship and contra messages must meet the restrictions applicable to the community channel, as per Public Notice CRTC 1991-59;

* does not provide program coverage outside of a single period consisting of a maximum of 28 consecutive days per year; and

* distributes programming that is carried only on the community programming channels or special programming channels of cable distribution undertakings.

3.  Closed Circuit Video Programming Undertakings

The definition of "broadcasting" in the new Broadcasting Act includes transmission of programs by radio waves or "other means of telecommunication...". This means that closed-circuit video undertakings, such as hotel pay-per-view (PPV) undertakings, now fall within the Commission's jurisdiction.

The Commission's jurisdiction extends to other forms of closed- circuit undertakings used for the distribution of programming. In addition to PPV undertakings in hotels and motels, such undertakings would include closed-circuit undertakings operating in prisons and hospitals for the distribution of specialized technical and general information aimed specifically at those persons in such institutions. In the Commission's view, the specialized nature of such programming and, in the case of hotels and motels particularly, the transient nature of the intended audience, distinguishes these undertakings from other closed-circuit programming undertakings such as MATV undertakings.

The Commission proposes to exempt persons carrying on such undertakings from the requirement to hold a licence, provided they meet the following criteria: Proposed Criteria for the Exemption of Persons Carrying on Closed-Circuit Video Programming Undertakings

The undertaking must be one that

* the Commission would not be prohibited from licensing pursuant to any Direction to the Commission by the Governor-in-Council;

* does not broadcast any programming that contravenes the Television Regulations, 1987;

* provides programming consisting only of films or information for the guests of hotels and motels, patients of hospitals and inmates of prisons;

* does not broadcast programming that is religious or political in nature;

* does not distribute the programming of another undertaking; and

* locally originates the service or obtains it through a hard-wire connection;

The Commission notes that the types of programming contemplated above for distribution via a closed-circuit video programming undertaking could be carried on MATV undertakings serving non-permanent residential dwellings, for example those providing service to hotels, motels, hospitals and prisons. In order that such MATV undertakings may remain exempt from licensing under the MATV exemption criteria (Public Notice CRTC 1989-47), the Commission proposes to amend the existing MATV exemption criteria, by adding the following:  Any MATV undertaking serving non-permanent dwellings may distribute the programming authorized for distribution by "Closed-Circuit Video Programming Undertakings", as set out in CRTC Exemption Order ....

4.  Other Broadcasting Undertakings

In addition to the foregoing classes of broadcasting undertakings, the Commission has identified certain other classes that warrant consideration for exemption, and are involved either in the assemblage of programming services or in their network delivery to cable and other distribution undertakings.

It is proposed that the exemptions would apply only to those persons carrying on undertakings that meet the general and specific criteria set out below:

Proposed General Criterion for the Exemption of Persons Carrying on Certain Other Programming and Distribution Undertakings

The undertaking must be one that the Commission would not be prohibited from licensing pursuant to any Direction to the Commission by the Governor-in-Council.

a) Proposed Specific Criteria for the Exemption of Persons Carrying on Still Image Programming Service Undertakings

As defined in the Cable Television Regulations, 1986, an "alphanumeric service" is "a service that consists of letters, numbers, graphic designs or still images, or any combination thereof..." which may be accompanied by various audio segments. Existing alphanumeric services include: home shopping services, such as CHSN; Broadcast News; bulletin boards; and advertising services such as real estate and classified advertising channels.

The Commission proposes to exempt from licensing requirements persons carrying on undertakings of a class that will be referred to as Still Image Programming Undertakings. It is proposed that exemptions would apply only to persons carrying on those undertakings that meet the general criterion outlined above and the following specific criteria:

The undertaking must be one that

* has a visual component of programming that consists entirely of still images; or, when combined with alphanumeric text, consists predominantly of still images; and

* has a visual component of programming that may be accompanied by an audio component consisting of:

(i) background music,

(ii) the programming service of a licensed A.M. station or licensed F.M. station, other than an educational radio programming service the operation of which is the responsibility of an educational authority,

 (iii) the service of Weather Radio Canada,

 (iv) the programming service of a licensed national programming audio network operation, or,

  (v) spoken words that simply and briefly explain or describe what is represented by the letters, numbers, graphic designs or still images.

b) Proposed Specific Criteria for Exemption of Persons Carrying on Terrestrial Distribution Network Undertakings

There are a number of terrestrial broadband delivery undertakings in Canada; most of these make use of microwave transmission facilities to deliver television and radio signals to cable systems. The operation of only six of these undertakings is currently licensed by the Commission. These licences were originally granted in the early to mid-1970's. At that time, the rationale for licensing them was the absence of a policy relating to the carriage of U.S. services delivered via microwave and the need to establish an appropriate rate structure for distant signal delivery by means of microwave.

Subsequently, the Commission adopted the "three-plus-one" policy and addressed the carriage issue relating to the delivery of distant U.S. signals and U.S. network duplication in its 26 March 1979 Public Announcement entitled "A Review of Certain Cable Television Programming Issues".

The issue of an appropriate rate structure for undertakings involving multiple cable licensees has also been addressed by the development of a consortium approach incorporating cost-sharing formulae for each of the undertakings in existence, whether or not their operators hold network licences issued by the Commission.

The remaining issues outstanding at the time these six microwave network licences were granted were addressed within the framework of the 1986 cable regulations.

No new licences for this type of undertaking have been issued since 1977. As a result, the majority of the broadband undertakings delivering services to cable are not licensed by the Commission.

Both licensed and unlicensed broadband delivery undertakings may employ regulated common carriers to deliver distant signals. In those cases where the delivery undertakings use privately-owned microwave facilities, they generally act like common carriers themselves in the sense that they provide a carriage function.

As a result, the Commission has concluded that the reasons for licensing these undertakings may no longer apply. The Commission therefore proposes to exempt persons carrying on such undertakings, which will be referred to as Terrestrial Distribution Network Undertakings, provided they meet the general criterion and the following specific criteria:

The undertaking must be one that

* makes use of technology other than satellite for the distribution of signals;

* restricts distribution of any and all signals to licensed distribution undertakings or to exempted distribution undertakings such as MATV systems;

* does not originate any programming and does not alter or curtail the programming it distributes; and

* is regional and not national in nature.

c) Proposed Criteria for Exemption of Persons Carrying on Community Programming Network Undertakings

The cable television regulations allow for the exchange of community programs between licensees through bicycling or interconnection. In most cases, adjacent undertakings in urban areas have interconnected by means of microwave or cable and have thus created networks because control over portions of one licensee's schedule is delegated to another licensee.

In its Community Channel Policy (Public Notice CRTC 1991-59), the Commission stated that it would consider whether to exempt persons carrying on these networks from the requirement to hold a network licence, once the new Broadcasting Act was proclaimed. The Commission proposes to exempt persons carrying on such network undertakings, provided the undertakings meet the general criterion and the following specific criteria. These will be referred to as Community Programming Network Undertakings:

The undertaking must be one that

* distributes only community programming, as defined in the Cable Television Regulations, 1986, to licensees of adjacent cable distribution undertakings serving a common urban area; and

* interconnects participating cable distribution undertakings by means of co-axial cable, microwave or fibre optics.

C.   CALL FOR COMMENTS

The Commission invites public comment on the above proposals, including the suggested criteria. Submissions should be addressed to the Secretary-General of the Commission (CRTC, Ottawa, Ontario, K1A 0N2) and received by the Commission on or before 27 March 1992.

Any document referred to in this notice may be obtained from the Commission at the above address.

Allan J. Darling
Secretary-General