ARCHIVED -  Public Notice CRTC 1995-128

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Public Notice

Ottawa, 28 July 1995
Public Notice CRTC 1995-128
On 14 March 1995, the Governor in Council issued Order in Council P.C. 1995-398 (the OIC), a copy of which is appended to this notice. The OIC requests the Commission "to report by July 31, 1995 on the rules, including related dispute resolution mechanism(s), to be established to ensure that broadcasting distribution undertakings provide fair and equitable access to authorized television programming services providers, whether licensed or exempt by the Commission, as well as on the process, the mechanism and the timetable the Commission proposes for the finalization and proper implementation of these rules."
In response to the request contained in the OIC, the Commission is today announcing a public process leading to a public hearing commencing on 5 February 1996, in the National Capital Region, for the purpose of establishing comprehensive access rules for broadcasting distribution undertakings.
The Commission's existing regulatory framework, applicable to cable distribution undertakings, addresses a number of elements included in the request contained in the OIC.
Priority carriage of local and regional signals and, in some cases, extra-regional signals, is a requirement under the Cable Television Requlations 1986 (the regulations). In addition, the English- and Frensh-language services of the Canadian Broadcasting Corporation and, where available, the service of the appropriate provincial educational broadcaster, must also be distributed if they are not already included in the priority over-the-air signals.
With regard to licensed specialty, pay television and pay-per-view services, the Commission last year accepted an Access Commitment deve-loped by the Canadian Cable Television Association (CCTA) following a public consultative process. This Access Commitment is applicable to all Class 1 cable systems (i.e. cable systems with 6,000 or more subscribers), and is administered by the Cable Television Standards Council (CTSC). As part of its mandate, the CTSC oversees a mechanism for resolving disputes concerning the interpretation and application of the CCTA's Access Commitment.
Furthermore, the Commission amended the regulations in 1994 by adding a new Part IV, which provides for the mediation and resolution of disputes between the licensee of a programming undertaking and the licensee of a distribution undertaking concerning the carriage, or terms of carriage, of programming originated by the programming undertaking.
With regard to access rules for exempt television programming services, on 14 June 1995 the CCTA submitted for Commission acceptance a proposed "Access Policy for Analog Exempt Programming and Alphanumeric Non-Programming Services" (the Access Policy).
On the same date, Rogers Cablesystems Limited (Rogers) submitted to the Commission a revised access policy for licensed programming services. In its revised policy, Rogers re-affirms the commitment noted in Decision CRTC 94-923 of 19 December 1994, which approved the transfer of control of Maclean Hunter Limited's holdings to Rogers Communications Inc., to carry all licensed specialty, pay, and pay- per-view services without qualification as to channel capacity, other than minority language or ethnic services, on its cable systems. Rogers also indicated that it supports the CCTA's proposed Access Policy for exempt and alphanumeric services.
The CCTA's proposed Access Policy, including supplementary documentation, as well as Rogers' submission, are available for examination by the public in the Commission's offices at the addresses provided later in this notice.
Consistent with the request contained in the OIC, the Commission's objective in this proceeding is to develop access rules that will be applicable to the carriage of programming services by all broadcasting distribution undertakings.
The Commission notes that the CCTA's existing Access Commitment for licensed specialty, pay and pay-perview services, as well as its proposed Access Policy for exempt/ alphanumeric services, are applicable to Class 1 cable licensees only. It is the Commission's intention to develop access rules that will also be applicable to Class 2 and Part III cable licensees.
Moreover, the Commission proposes to develop access rules that will be applicable to other types of broadcasting distribution undertakings as well. This would include existing and future distribution undertakings such as DTH undertakings and exempt MATV undertakings, as well as wireless radiocommunication undertakings using technologies such as MDS and Cellularvision. The Commission strongly encourages operators of all types of existing distribution undertakings, as well as potential applicants for new distribution undertaking licences, to participate in this process.
The Commission also notes that the CCTA's proposed Access Policy extends to non-programming (alphanumeric textual) services. However, the request contained in the OIC does not refer to nonprogramming services, but only to "authorized programming services, whether licensed or exempt".
The Commission's longstanding policy is that priority should be given to the distribution of programming services over non-programming services. Paragraph 3(1)(t) of the Broadcastinq Act (the Act) states that distribution undertakings "should give priority to the carriage of Canadian programming services", and paragraph 9(g) of the Act states that the Commission may "require any licensee who is authorized to carry on a distribution undertaking to give priority to the carriage of broadcasting".
Moreover, in Decision CRTC 94-923, the Commission stated that "...disagreements regarding access to cable distribution facilities by providers of [non-programming] services cannot be adequately dealt with under the Broadcastinq Act."
The Commission also notes that a separate proceeding is currently being held under the Telecommunications Act to consider issues related to access by non-programming services to broadcasting distribution undertakings (Telecom Public Notices CRTC 95-22 and 95-34).
Given the above, the Commission has determined that this proceeding should address the development of appropriate access rules for Programminq Services only.
Therefore, subject to this determination, the Commission invites comments from interested parties on any matter related to the OIC request, including the submissions provided by the CCTA and Rogers. Without limiting the scope of the issues on which comments may be submitted, the Commission also invites interested parties to provide their views on the following specific matters:
Proper implementation of access rules
The OIC asks the Commission to report on "...the mechanism and the timetable the Commission proposes for the finalization and proper implementation [emphasis added] of these rules." Accordingly, the Commission invites comments as to the most appropriate means to finalize and implement access rules applicable to various types of distribution undertakings.
Dispute resolution mechanism
The Commission recently amended its regulations in order to provide a mechanism for the mediation and resolution of disputes involving cable distribution undertakings and licensed programming services. The Commission now invites comments on whether it should amend subsection 27(2) of the regulations so that it would apply not only to licensed programming services, but also to exempt programming service. Moreover, with respect to programming services distributed by distribution undertakings other than cable, the Commission invites comments as to what would be the most appropriate means of establishing a mechanism for mediation and dispute resolution.
Applicability of access rules to digital transmission
The Commission notes that the CCTA's proposed Access Policy applies only to services delivered in analog form. The Commission invites comments on whether access rules should be developed to apply to digital transmission as well as to analog, and if so, what components of a digital access policy need to be different from the policy for analog channels and, therefore, should be separately addressed.
Grandfathering of existing exempt programming services
At the present time, cable licensees typically distribute a variety of exempt programming services including, for example, home shopping services, and services devoted to real estate and classified advertising. The Commission seeks comments as to whether it would be appropriate to grandfather the distribution of such exempt programming services, and if so, what criteria should govern the grandfathering of such services.
In particular, the Commission would be concerned by situations where a number of exempt programming services controlled by a cable licensee might be grandfathered, but where there is currently, and perhaps for the foreseeable future, little or no real channel capacity for the distribution of new third-party services. Parties are invited to comment on this area, including the rules that should apply in such circumstances, and whether it is appropriate for distributors to grandfather services in which they have an ownership interest before providing access to channel capacity for services provided by third parties.
In order to have the fullest possible public consultation, the Commission will hold a two-stage written comment process prior to the 5 February 1996 public hearing. Details of the public hearing will be announced at a later date.
The deadline for the submission of written comments during the first stage is 22 September 1995. These initial comments will be made available for examination by the public as soon as possible following the deadline, in the Commission's offices at the addresses provided later in this notice. Those parties commenting either on the CCTA's proposed Access Policy, or on Rogers' commitments in relation to this Policy, are encouraged to provide copies of their comments directly to the CCTA and/or Rogers, as appropriate.
The Commission expects the CCTA to file, by no later than 1 November 1995, a revised access policy for exempt programming services. This revised policy should take into account the Commission's comments in this public notice concerning the scope of the proceeding, as well as the submissions received in the first stage.
Interested parties, including those who may not have participated in the first stage of the process, will then have an opportunity to submit written comments in the second stage regarding any issue raised in the first round of comments, and/or on the revised CCTA access policy. The deadline for written comments submitted as part of this second stage is 1 December 1995.
The Commission considers that this process should provide interested persons a full opportunity to make their views known in the written phase of this proceeding. In the interest of focusing and streamlining the oral phase of the proceeding, the Commission will not generally be prepared to concentrate on issues other than those raised by interested persons in the written comments.
The Commission will only accept submissions that are received on or before the prescribed dates noted above. In other words, the submissions must actually be received in the Commission, not merely mailed by the specified dates.
The Commission offers the following additional information respecting procedural requirements:
1. Interested parties wishing to appear at the public hearing must first have participated in the "written process" of this proceeding. Parties may participate in either the first or second stage of the written process, or both stages.
2. The Commission emphasizes that submissions filed in response to this notice must be complete and focused. Each submission should also include a short executive summary.
3. Those requesting to appear will be required to provide reasons, on the first paqe of their submissions, as to why their written submissions are not sufficient and why an appearance is necessary. The Commission will inform parties whether their request to appear is granted. The Commission reiterates that consideration of all written submissions will be an
important element in the preparation of its report.
4. In the second stage of the process, only comments on issues raised in the submissions received during the first stage of the process, or on the CCTA's revised access policy to be filed by 1 November 1995, will be accepted. Interested Parties who submit comments during the second stage of the written process will be required to identify, on the first paqe of their submission, to which of the first-stage submissions their comments are addressed.
5. To ensure effective use of the public hearing time, the Commission may use a written question process to obtain additional information from those who have filed submissions, after either the first or second stage of the written process. Such information would then become part of the public file.
6. In light of the nature of this proceeding, the Commission expects that all information provided in this process will form part of the public record of the proceeding without further
notification to those filing comments.
7. Comments filed in response to this notice must be addressed to the Secretary General, CRTC, Ottawa, KlA ON2, and must be filed in hard copy form. Parties are also encouraged to provide the Commission with a copy of all text material contained in their submissions on IBM-compatible floppy diskettes, either in WordPerfect 5.1 or MS Word 6.0 format, or as an ASCII text file. The Commission also requests that, where applicable, copies of spread sheets be provided as Lotus 1-2-3 WK1 or Microsoft Excel files. Electronic copies of graphs and diagrams should be provided in the default format of the software used to create them.
Related Documents: Public Notice CRTC 1993-74 (Structural Public Notice); CCTA's 2 May 1994 ACCESS COMMITMENT regarding licensed specialty, pay television and payper-view services; Public Notice CRTC 1994-55 accepting this ACCESS COMMITMENT; Public Notice CRTC 1994-7 [introducing mediation and dispute resolution mechanisms under s. 27 to 30 of the regulations]; Decision CRTC 94-923 [approving transfer of control of MHL to RCI]; OIC P.C. 1995-398; Telecom Public Notices CRTC 95-22 and 95-34; CRTC letter of 27 April 1995 to Mr. Marc Rochon, Deputy Minister of Canadian Heritage; CCTA's "Access Policy for Analog Exempt Programming and Alphanumeric Non-Programming Services" dated 14 June 1995 and all related documents submitted therewith; and all correspondence related to Rogers' proposed Access Policy for licensed programming services, exempt programming services and non-programming services for its licensed undertakings.
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