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Public Notice
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Ottawa, 16 May 1994
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Public Notice CRTC 1994-55
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ACCEPTANCE OF THE CCTA ACCESS COMMITMENT
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I BACKGROUND
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The March 1993 Structural Public Hearing provided an opportunity for the Commission to review the cable industry's access guidelines for the distribution of Canadian programming services. Following a discussion at the hearing with the Canadian Cable Television Association (CCTA) and various other parties on this matter, the Commission issued Public Notice CRTC 1993-74 (the Structural Public Notice), in which it stated:
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... the Commission considers it appropriate that the CCTA, on behalf of the cable industry, initiate a public process to review the existing CCTA guidelines, and to submit them to the Commission for acceptance as soon as possible. Once accepted, the guidelines should be administered by the Cable Television Standards Council.
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The notice also specified the Commission's expectations with respect to the fundamental requirements to be contained in the revised guidelines:
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...the Commission considers that the guidelines must reflect the fundamental principle that cable operators must distribute all English-language services in Anglophone markets, and all French-language services in Francophone markets. In regards to the distribution of English-language services in Francophone markets and the distribution of French-language services in Anglophone markets, the Commission has, and continues to, encourage cable licensees to distribute these services.
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As required in the Structural Public Notice, the CCTA undertook a public process, including consultation with interested parties, to review and revise its access guidelines. As a result of that process, in a letter dated 2 May 1994, the CCTA submitted to the Commission for acceptance its proposed ACCESS COMMITMENT for licensed Canadian specialty, pay television and pay per view services.
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The 2 May 1994 submission followed several exchanges of correspondence between the Commission and the CCTA on earlier drafts of the ACCESS COMMITMENT. All such correspondence, along with letters from certain other parties, was placed on the public file.
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II The CCTA ACCESS COMMITMENT
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The cable industry's fundamental position, as stated in the proposed ACCESS COMMITMENT, is:
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Cable Television licensees will provide access to every licensed Canadian specialty, pay television and pay per view service, except where the cable licensee can demonstrate that it has no available channel capacity.
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Under the provisions of the ACCESS COMMITMENT, this statement applies to Class 1 cable licensees (i.e. those with systems serving 6000 or more subscribers) in respect of their carriage of licensed Canadian specialty, pay television and pay per view services on a discretionary basis. Specifically, it applies to the carriage of licensed English-language services in Anglophone markets and licensed French-language services in Francophone markets, and to licensed ethnic services in markets meeting certain criteria as set out in the ACCESS COMMITMENT.
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The Commission notes that large Class 2 licensees (i.e. those with systems serving 2000 or more subscribers) are also encouraged to apply the ACCESS COMMITMENT. Furthermore, the Commission notes that cable licensees are encouraged to apply the ACCESS COMMITMENT to licensed English-language and French-language specialty, pay television and pay per view services in the services' official minority language markets.
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Finally, the ACCESS COMMITMENT provides a mechanism for the resolution of disputes based on a referral to the Cable Television Standards Council for mediation, followed, if necessary, by referral to the Commission for determination.
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III THE COMMISSION'S FINDINGS
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The Commission has carefully reviewed the proposed ACCESS COMMITMENT in light of the expectations outlined in the Structural Public Notice, and in the context of the applications for new specialty, pay television and pay per view licences that the Commission is currently considering. It is satisfied that the ACCESS COMMITMENT adequately responds to the Commission's expectations, and provides an appropriate framework for the distribution of licensed specialty, pay television and pay per view services on a discretionary basis. Accordingly, the Commission hereby accepts the CCTA ACCESS COMMITMENT, as filed on 2 May 1994.
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In making this determination, the Commission wishes to highlight the following specific matters related to the application of the ACCESS COMMITMENT.
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1. Definition of "available channel capacity"
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The ACCESS COMMITMENT defines "available channel capacity" as including:
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any channels occupied by non-programming services and, unless otherwise directed by the CRTC, any channels occupied by services which the CRTC, by order, has exempted from the requirement to hold a broadcasting licence.
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At the 14 February 1994 public hearing where the Commission considered applications for new specialty, pay television and pay per view licences, various cable licensees indicated that, because of capacity limitations on their particular systems, they would treat non-priority network duplicates as "available channel capacity". In this regard, the Commission notes that information provided during the hearing demonstrated channel capacity limitations on many cable systems at least until 1997.
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Accordingly, the Commission expects that licensees will take into account any channels occupied by non-priority network duplicates when determining "available channel capacity".
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Furthermore, in the exchange of correspondence between the Commission and the CCTA with regard to the issue of "available channel capacity", the Commission indicated that there could be circumstances where the programming service of an exempt programming undertaking should not be subject to removal in order to provide capacity for a licensed specialty, pay television or pay per view service.
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In this regard, the Commission has determined that channels used to distribute the House of Commons and provincial legislative proceedings should not be considered as "available channel capacity".
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2. Minority Language Clause
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The ACCESS COMMITMENT also recognizes that, in certain markets where channel capacity is limited, in order to provide a selection of services to its subscribers in both official languages, a cable licensee may wish to depart from the order of priority established for the distribution of specialty, pay and pay per view services, by distributing a minority language service. The Commission notes, however, that under the ACCESS COMMITMENT, such a cable licensee would have to receive the Commission's prior authorization before departing from the established order of priority.
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3. Criteria for the carriage of ethnic services
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With respect to the distribution of ethnic services, the ACCESS COMMITMENT specifies that such a service will be distributed provided that at least 10% of the population in the community served by the licensee "is of one or any combination of the ethnic origins to which the service is intended to appeal." In addition, it also ensures the continued carriage of ethnic services currently distributed on cable systems. Although the Commission considers that this provision is appropriate for existing ethnic services, it is not persuaded that the 10% threshold alone, in the absence of an absolute numerical threshold, will remain appropriate should the Commission license any new ethnic services in the future.
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Accordingly, the Commission notes that, should a new ethnic service be licensed, it may be necessary to revisit the existing ethnic service threshold that is contained in the ACCESS COMMITMENT.
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IV CONCLUSION
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The Commission considers that the CCTA ACCESS COMMITMENT is an important element in the overall framework for the cable distribution of Canadian programming services. The Commission is confident that, in keeping with the spirit of the ACCESS COMMITMENT, the cable industry will provide the fullest possible exposure for Canadian programming services.
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Copies of the CCTA ACCESS COMMITMENT are available at the CCTA offices at 1010-360 Albert Street, Ottawa, Ontario K1R 7X7 and through the CRTC, Ottawa, Ontario K1A 0N2 or its regional offices in Halifax, Montréal, Toronto, Winnipeg and Vancouver.
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Allan J. Darling
Secretary General
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