ARCHIVED -  Telecom Public Notice CRTC 95-22

Telecom Public Notice

Ottawa, 9 May 1995

Telecom Public Notice CRTC 95-22

PROVISION OF NON-PROGRAMMING SERVICES BY BROADCAST DISTRIBUTION UNDERTAKINGS

On 1 February 1995, the Canadian Daily Newspaper Association (CDNA) filed an application against Rogers Cable TV Limited (RCTV). In its application, CDNA noted that RCTV distributes non-programming services on its cable television facilities. CDNA argued that, in doing so, RCTV is in breach of (1) subsection 25(1) of the Telecommunications Act, by providing such services without a tariff, and (2) subsection 27(2) of the Telecommunications Act, by giving to itself an undue or unreasonable preference in the delivery of non-programming services on its own facilities.

In support of its application, CDNA submitted that, in operating a distribution undertaking, RCTV takes or receives "intelligence", and distributes "telecommunications" as defined in section 2 of the Telecommunications Act. Further, CDNA submitted that, by distributing the non-programming services on its cable television facilities, RCTV operates its own "telecommunications facility" and, accordingly, acts as a "Canadian carrier" providing a "telecommunications service" pursuant to section 2 of the Telecommunications Act.

CDNA stated that the distribution of non-programming services does not fall outside the application of the Telecommunications Act. Among other things, CDNA noted that, in Rogers Communications Inc. Locations Across Canada, Decision CRTC 94-923, 19 December 1994 (Decision CRTC 94-923), the Commission considered that disagreements regarding access to the facilities of distribution undertakings for the purpose of delivering non-programming services could not be adequately dealt with under the Broadcasting Act. Further, CDNA noted that, in Bell Canada v. Rogers Cable T.V. Ltd. Carrying on Business as Rogers Network Services - Application to Require the Filing of Tariffs of Tolls by Rogers Cable TV Ltd., Telecom Decision CRTC 92-10, 11 June 1992, the Commission has already ruled that, where a company operates distribution undertakings under the Broadcasting Act and at the same time uses the facilities to provide telecommunications services, it must provide such telecommunications services pursuant to a tariff under the Telecommunications Act.

CDNA requested that the Commission order RCTV to cease distribution of non-programming services on its facilities until RCTV has filed and received approval from the Commission for a tariff for use by RCTV and others in arranging for the delivery of such services using RCTV's distribution undertaking facilities.

On 3 March 1995, RCTV filed its answer to CDNA's application. RCTV denied that it was in breach of the Telecommunications Act. Further, RCTV stated that CDNA's application raises a number of issues with respect to access to cable television facilities which were raised during the Commission's public proceedings dealing with the Rogers/MacLean Hunter merger (Decision CRTC 94-923) and which the Governor in Council specifically requested the Commission examine and report on in the context of Order-in-Council, P.C. 1994-1689, 11 October 1994 (see Public Notice CRTC 1994-130, 20 October 1994).

RCTV stated that the access issues raised by CDNA cannot be addressed in isolation from the Canadian broadcasting policy and, in particular, the priority carriage rules applicable to cable television undertakings under the Broadcasting Act. RCTV argued that, as long as channel capacity remains a scarce resource, the issue of access for non-programming services cannot be addressed solely in terms of principles of common carriage under the Telecommunications Act. RCTV submitted that the issue of access is of broad public interest affecting all cable television companies, not just RCTV, and is therefore an issue requiring wider industry participation and input.

On 13 March 1995, CDNA filed its reply. CDNA stated that the proceeding commenced by Public Notice CRTC 1994-130 is a policy hearing and is not intended to determine the rights of any party. CDNA stated that the relief sought in its application is not a policy review, or a ruling by the Commission; rather, it has asked the Commission to regulate as required under the Telecommunications Act.

CDNA also argued that the Commission has ample authority to deal with access to cable television facilities for the purpose of delivering non-programming services under the Telecommunications Act.

The Commission is of the view that the issues raised by CDNA's application are of wide public interest. Accordingly, the Commission initiates a proceeding to consider:

(1) under what conditions, if any, would the carriage of non-programming services by a cable television undertaking result in that undertaking operating as a Canadian carrier as defined in the Telecommunications Act, and

(2) if a cable television undertaking is found to be acting as a common carrier of telecommunications services, and given the possibility of limited capacity, how the requirements established by the Commission pursuant to the Broadcasting Act are to be reconciled with the operations of a common carrier pursuant to Telecommunications Act.

Procedure

1. CDNA and RCTV are made parties to this proceeding. CDNA's application, RCTV's answer and CDNA's reply are made part of the record of this proceeding.

2. Other persons wishing to participate in the proceeding must notify the Commission of their intention to do so by writing to Mr. Allan J. Darling, Secretary General, CRTC, Ottawa, Ontario, K1A 0N2, fax: 819-953-0795, by 13 June 1995. The Commission will issue a complete list of parties and their mailing addresses.

3. The application, answer and reply may be examined at the offices of the CRTC in the following locations:

Central Building
Les Terrasses de la Chaudière
1 Promenade du Portage
Room 201
Hull, Quebec

Bank of Commerce Building
1809 Barrington Street
Suite 1007
Halifax, Nova Scotia

Place Montréal Trust
1800 McGill College Avenue
Suite 1920
Montréal, Quebec

Standard Life Centre
121 King Street West
Suite 820
Toronto, Ontario

275 Portage Avenue
Suite 1810
Winnipeg, Manitoba
800 Burrard Street
Suite 1380
Vancouver, British Columbia

4. Parties may file comments with the Commission, serving copies on all other parties, by 27 June 1995.

5. Parties may file reply comments with the Commission, serving copies on all other parties, by 11 July 1995.

6. Where a document is to be filed or served by a specific date, the document must be actually received, not merely mailed, by that date.

Allan J. Darling
Secretary General