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ARCHIVED -  Decision CRTC 95-241

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Decision

Ottawa, 19 May 1995
Decision CRTC 95-241
Trillium Cable Communications Limited
Part of the Township of Pickering and Part of Scarborough, Brougham, Greenwood and Claremont; Part of Metropolitan Toronto, Ontario - 941358400 - 941359200
Addition of WNEQ-TV (PBS) Buffalo, New York - Denied
Following Public Notice CRTC 1994-153 dated 19 December 1994, the Commission denies the applications submitted by Trillium Cable Communications Limited (Trillium) for
authority to distribute, pursuant to paragraph 10(1)(j) of the Cable Television Regulations, 1986 (the regulations), at its option, the programming service of WNEQ-TV (PBS) Buffalo, New York, on a discretionary basis.
Currently, Trillium distributes one PBS station, namely WNED-TV Buffalo, as part of the basic service of the cable undertakings serving the communities noted above. Trillium is requesting authority to distribute WNEQ-TV as a duplicate PBS station, on the discretionary tier of these cable undertakings.
In support of these applications, Trillium noted that WNEQ-TV is received over the air at the local head end of each of these cable systems. Trillium also claimed that there is a significant consumer demand for this service. Further, Trillium argued that the addition of WNEQ-TV to its newest discretionary tier, which consists primarily of new Canadian specialty services, would positively affect the marketing of these services.
WNEQ-TV began operation in May 1987. In Public Notice CRTC 1986-182 dated 1 August 1986 announcing the enactment of the regulations, the Commission stated that the carriage of non-Canadian television stations that commenced operation later than 1 January 1985 would not be authorized through the regulations. Instead, cable licensees wishing to carry such stations were directed to apply to the Commission for specific authorization on a case-by-case basis.
Subsequently, in Public Notice CRTC 1993-74 dated 3 June 1993 entitled "Structural Public Hearing", the Commission stated that it would generally be prepared to authorize the carriage of a duplicate PBS network service, received over the air at the local head end of cable undertakings in provinces served by a provincial educational broadcaster, only on a discretionary basis.
The Commission also notes that its general practice has been to authorize additional commercial and non-commercial duplicate services, either for basic or discretionary carriage, in cases where there would be no overall increase in the number of U.S. signals distributed on a cable system.
In evaluating the present applications, the Commission has taken into consideration the opposing intervention submitted by TVOntario (TVO), the provincial educational broadcaster. TVO outlined the concerns previously expressed in its interventions opposing similar applications, that the increased distribution of WNEQ-TV in Ontario would erode TVO's audience, revenues and viability. TVO also reiterated its contention that PBS duplicate services should be carried in an encrypted form on a discretionary pay tier, until such time as there is a clear distinction between the basic and discretionary tiers.
In addition, TVO noted that WNEQ-TV will broadcast a 12-hour block of children's programming, seven days a week, from 7 a.m. to 7 p.m. TVO argued that WNEQ-TV will effectively be a children's channel and that it will undermine TVO's new four-hour block of children's programming.
TVO also stated that, since WNEQ-TV will broadcast children's programming extensively, it will differentiate itself substantially from WNED-TV.
The Commission has noted Trillium's response, asserting that the status quo cannot continue in the everchanging communications environment. Moreover, Trillium argued that extensive publicity regarding the launch of the new specialty services has made it very clear that the discretionary tiers are not a part of the basic service. Trillium also argued that the impact on TVO could also be alleviated through carriage of WNEQ-TV on its second discretionary tier, which it claims has a lower penetration than its first tier.
The Commission however considers that the evidence provided by TVO warrants a departure from the Commission's policy stated in Public Notice CRTC 1993-74 to generally allow the cable distribution of a duplicate over-the-air PBS signal on a discretionary tier. Accordingly, the Commission has denied Trillium's applications.
The Commission acknowledges three interventions submitted regarding these applications and the licensee's reply thereto.
Allan J. Darling
Secretary General

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